FINANCIAL SERVICES REGULATORY ALERT
REGULATING FINTECH IN CANADA
Many believe that Canada has the potential to become a leading, if not the leading, global fintech hub. While the Canadian financial services regulatory system has helped to protect Canadians and their financial institutions from disruption and financial setbacks, our regulatory system has also perhaps not contributed to the development of the most robust fintech sector compared to our global competitors.
There are some important recent regulatory developments that have the potential to make a very positive impact on Canada's ability to become a global fintech hub. A description of recent regulatory developments and some thoughts on what else we can ask our public policy makers to do to help to create the optimal regulatory environment for fintech in Canada are discussed below.
It is clear that one of the main challenges for fintech companies is navigating regulation. While political sentiment towards fintech is largely favourable (governments are typically keen to be seen to be encouraging innovation; they have also seen the potential for fintech to progress other policy objectives like increasing the accessibility of financial services and reducing the size of the unbanked or under-banked population), regulatory approaches have been slower to catch up.
A key requirement for most fintech companies will be a detailed analysis of their business models against applicable financial regulation to fully
understand what can be achieved without becoming a regulated entity, or, conversely, to help them seek appropriate licences or approvals. If they are consumer facing, fintechs will also need to be aware of the necessary consents and applicable regulations designed for consumer protection. A challenge is that regulation in matters such as payment services and consumer protection continues to evolve. For existing regulated financial institutions, the concern is that the environment for themselves and their fintech partners be predictable, accessible and that their regulators are well informed and supportive of their efforts to improve customer experiences.
FINANCIAL SERVICES REGULATORY ALERT | OCTOBER 2016
Canada The Current Environment
At the Federal level there has been a great deal of recent fintech related activity within the instrumentalities of Government of Canada responsible for the financial sector.
To begin with, the 2014 amendments to the Proceeds of Crime (Money Laundering) Terrorist Financing Act ("PCMLTFA") made provision for the regulation of persons and entities that are engaged in the business of dealing in virtual currencies. Further, as amended, the PCMLTFA provided that no bank, federal or provincial trust company or credit union could open or maintain an account for, or have a correspondent banking relationship with, a person or entity dealing in virtual currency that did not have a place of business in Canada unless that person or entity was registered with FINTRAC. The implementation of the above amendments to the PCMLTFA awaits the adoption of regulations. The Government has indicated that it would aim, in these regulations, to cover virtual currency exchanges, but not individuals or businesses.
More recently, in June of this year, the Government promulgated regulations to the PCMLTFA that make material changes in the areas of client identification and verification, especially for clients who are not physically present and make provision for the adoption of electronic signatures. These changes will make the on-boarding of on-line clients less burdensome and this should facilitate the development and implementation of certain new fintech financial service offerings.
Office of the Privacy Commissioner
Over the past several years the Office of the Privacy Commissioner ("OPC") has published a number of reports that provide helpful background to some of the key issues that underlie a more secure environment for personal information including reports on protecting identity in a digital world, predictive analytics and cloud computing. There is a broad consensus that the most important issue from a consumer acceptance standpoint is the protection of personal
information and it appears that the OPC is fully aligned with the objective of creating an optimal environment for fintech in Canada.
Department of Finance
Last year the Department of Finance issued a consultation paper seeking input on the oversight of national payment systems. Core clearing and settlement systems are currently subject to regulation and oversight for safety, soundness and efficiency purposes. However, this oversight does not fully extend to national retail payment systems, including digital wallets and virtual currencies. As a result, these systems are not currently subject to comprehensive and consistent rules that protect consumers and ensure public confidence in the use of electronic payment methods. Also last year, the Department established a forum of public and private sector representatives to discuss industry level developments in the Canadian payments system ("FinPay"). FinPay's mandate is to advise the Department on developments related to public policy aspects of payments issues (e.g. competition, innovation, safety, user needs or consumer protection); discuss approaches for dealing with emerging and ongoing challenges/opportunities in the payments system; and inform Government policy-making about the Canadian payments system.
Most recently, the Department has issued a consultation paper entitled "Supporting a Strong and Growing Economy: Positioning Canada's Financial Sector for the Future". Among the issues on which the Department seeks input is financial innovation and emergence of financial technologies. The Department is seeking comments from interested stakeholders by November 15, 2016.
Senate of Canada
Last year, the Senate Standing Committee on Banking Trade and Commerce, in a report that focused on digital currency, concluded that the best strategy for dealing with virtual currencies is to monitor the situation as the technology evolves. Further it suggested that this technology requires a light regulatory touch almost a hands off approach. In other words, not necessarily regulation, but regulation as necessary.
Bank of Canada
Earlier this year it was announced that the Bank of Canada had partnered with Payments Canada, the Big Five Canadian banks and R3, a consortium of more than 40 global financial institutions, including Barclays Plc and JPMorgan Chase & Co., to better understand the mechanics of the blockchain to experiment with distributed ledgers a decentralized technology that underpins digital currencies such as bitcoin. The objective is to build what it calls a "rudimentary wholesale payment system" and to experiment with technology in a lab-like setting to get a sense of how it can improve efficiency and transparency in the financial system. The Bank of Canada has indicated that before embracing any new system, regulators must ensure that consumers and financial markets are protected, and there are rules preventing money laundering and terrorist financing.
The Bank of Canada's research over the past few years has focused on new payment methods, the adoption and competitiveness of digital currencies, and the essential benefits of private e-money. The Bank is continuing this work and broadening it to include other developments, such as peer-to-peer lending and uses of distributed ledger technology. Most recently, the Bank of Canada has issued a report entitled "On the Value of Virtual Currencies". The paper develops a theoretical framework to analyse the economic factors affecting the exchange rate for virtual currencies. The model that is developed by the authors of the paper predict that as virtual currencies become more established the exchange rate will become less sensitive to the impact of speculation.
Also earlier this year, the Competition Bureau launched a market study into fintech in the Canadian financial services sector. The Bureau indicated that its market study will focus on how innovation is affecting the way consumers and businesses use financial products and services. In addition, the Bureau indicated that the study will explore the competitive impact that fintech is having on the industry, barriers to entry faced by companies, and whether there is a need for
regulatory reform to promote greater competition while maintaining consumer confidence in the sector. The Bureau's report is expected in early 2017.
Securities regulation in Canada impacts a number of fintech business models (including companies offering online advising, peer-to-peer lending, crowdfunding platforms and angel investor organizations).
In recent weeks, securities commissions in Qubec and Ontario have taken steps to facilitate the efforts of fintech entrepreneurs. In Qubec l'Autorit des marchs financiers has established a fintech working group to analyse the development of fintech and anticipate steps needed to regulate activities and protect consumers. In Ontario, the Ontario Securities Commission ("OSC") has announced plans for a pilot program (OSC LaunchPad) to assist innovative businesses, particularly financial technology (fintech) and start-up companies, understand the securities regulatory environment, how the regulatory framework applies, and how to register their businesses in Ontario.
Pursuant to the OSC LaunchPad initiative, AngelList LLC, a start-up funding platform has obtained relief from a number of requirements of general application so that it may operate a novel online platform for accredited investors.
Also, recently, Lendified Holdings' subsidiary Vault Circle and Canadian startup Lending Loop have each obtained exempt market dealer licences to enable each company to present lending opportunities to accredited investors.
In addition, the Chair of the OSC has indicated that the Canadian Securities Administrators ("CSA") will reveal plans to lessen the regulatory burden for fintech with a notice to be published early next year.
Earlier the CSA published guidance for portfolio managers that provide online advice typically a low-cost service aimed at cost-conscious retail investors that sets out the ways that firms can provide that advice while remaining in compliance with regulatory requirements.
FINANCIAL SERVICES REGULATORY ALERT | OCTOBER 2016
In addition, while not exclusively relevant to fintech, provincial securities regulators in most Canadian jurisdictions have found common ground on a system of regulation of equity crowdfunding. Apart from the obvious interest of some early stage businesses tapping into the crowd to fund early funding requirements, a number of lending business that have sought to facilitate direct peer-to-peer lending activities have been required to consider the application of provincial securities legislation.
With the exception of the Province of Qubec, the activities of those engaged in the provision or facilitation of digital currency are not specifically regulated at the provincial level. Qubec has regulated the digital currency sector by requiring businesses that operate virtual currency automated teller machines or trading platforms to obtain a licence to operate in the province.
The balance of Canadian laws of greatest relevance to the fintech sector is embedded in requirements that aim to protect consumers. Consumer protection statutes cost of credit disclosure requirements and consumer credit reporting and collection rules are among the most prominent features of relevant provincial law that are relevant to the activities of many fintech entrepreneurs.
THE WAY FORWARD
There is no doubt that much can be learned from the current experience of other jurisdictions, whether it be the UK, Singapore or Australia. At the same time, there are a number of uniquely Canadian approaches to our regulatory environment that deserve consideration.
True Intergovernmental Cooperation
Unlike jurisdictions like the UK and Singapore, in Canada there is no central regulatory authority or group of regulatory authorities under the control of the same level of government. While this is a complicating factor, it is not a barrier to coordinated and effective action.
There is a real opportunity for our governments to make progress in helping to identify practical and
pragmatic approaches to regulation that put aside rigid constitutional posturing. The current ongoing consultation process that has been launched on innovation led by the Honourable Navdeep Bains, Minister of Innovation, Science and Economic Development, is very encouraging and could be the vehicle through which a number of innovative initiatives are forthcoming. The Government has indicated that it will focus on six areas for action: promoting an entrepreneurial and creative society; supporting global science excellence; building world-leading clusters and partnerships; growing companies and accelerating clean growth; competing in a digital world; and improving ease of doing business. Each of these areas for action is completely compatible with the objective of growing a world class fintech sector in Canada.
In Search for Regulatory Harmony
With notable exceptions, our two levels of government (i.e., federal and provincial) have sometimes failed to act in the public interest when it comes to regulatory consistency and harmonization in areas of shared and overlapping jurisdiction. The field of consumer protection is an area of shared jurisdiction that is unnecessarily complex and lacks uniformity in many areas of relevance to fintech. Anyone seeking to build a national platform for a fintech business focused on servicing consumers is faced with spending potentially hundreds of thousands of dollars building documentation and compliance regimes to satisfy largely un-harmonized provincial requirements on such topics as cost of credit disclosure and the regulations of businesses like mortgage brokerages. These unnecessary differences are a barrier to both entry and a significant drag on the potential for success. A decade ago a national project to harmonize cost of credit disclosure resulted in 10 different sets of disclosure, based on some common principles but implemented with sufficient uniqueness as to require careful study to identity provincial differences and exceptions.
A Canadian Regulatory Sandbox
There is much interest in other jurisdictions in the concept of regulatory "sandboxes". One might point to the OSC LaunchPad as a Canadian response to issues related to securities.
While the concept of one or more sandboxes is worthy of consideration, as is often true of novel ideas, the devil is in the details. What regulatory requirements would one be considering relaxing or eliminating on some interim basis? For whom and for what time period? Another complication is that in Canada neither the federal nor the provincial governments have free reign over the regulation of financial services. Instead, what may make more sense for Canada is to consider an idea that has already been deployed to some extent in the securities and pension regulatory environments the idea of a regulatory passport system. In a passport system, a single jurisdiction is responsible for the regulation of the entity or activity and the rules of other jurisdictions in which an entity is active or the activities conducted are not applicable. While intergovernmental cooperation is necessary for such a regime to be implemented, a minimal level of actual law reform would be required to operationalize a regime of this nature.
The Need for an Innovations Lens
While turning back the clock by removing out of date and unproductive legislation and regulation is a part of the agenda of a number of governments in Canada, and a laudable objective, there is perhaps an opportunity to ensure that any new laws and regulations are subjected to an innovations lens before adoption. Governments, federal and provincial, are required to assess the costs and benefits of new regulations. As a country, we should be assessing the impact of any new law or regulation on our potential to innovate. Unless those responsible for drafting new laws and regulations can demonstrate convincingly that the new measure will further innovation in the economy, we should ensure that other public interests served by the measure can justify the potentially negative impact on innovation for any such new initiative.
Drawing on the Experience of Others
Each of the governments of the UK, Singapore and Australia has found ways to prioritize fintech policy making. In the UK there is a discussion around the creation of a Fintech "delivery body" to drive high impact policy initiatives to implementation as quickly as possible. The UK is
considering whether it would have responsibility of shaping and driving the implementation of the pipeline initiatives and be accountable to the Government and the public. The delivery body would coordinate and manage the pipeline initiatives, track progress against clear milestones and coordinate communications with the various stakeholders. It is felt that the body would be most effective if established independently with a governance structure drawn from senior members of the Government and industry.
Creation of one or more fintech delivery bodies seems like a valid objective for Canada as there is not one department, ministry or agency within either level of government in Canada that would be the logical home for all fintech policy development. One can perhaps draw upon the experience of the provinces of Qubec and Ontario who have each appointed senior officials to oversee and advise on health innovation policy. One can imagine a similar appointment of a senior official with responsibility for promoting fintech within a province such as Ontario, Qubec or British Columbia seeking to achieve comparable objectives.
Each of UK, Singapore and Australia have also found ways to focus the energy of regulators, the FCA in the UK, the Central Bank in Singapore and the Securities and Investment Authority in Australia, to become sources of advice, guidance, and in some cases, relief and financing to early stage entrepreneurs seeking to develop fintech business.
Closer to home, in the United States, federal regulatory authorities have been visible in providing their views on future direction. Specifically, US Consumer Financial Protection Bureau has an Innovation Policy intended to enhance regulatory compliance in specific circumstances where a product promises significant consumer benefit and where there may be uncertainty around how the product fits within an existing regulatory scheme. More recently, the US Office of the Comptroller of the Currency ("OCC") has issued a White Paper proposing to develop a comprehensive framework to improve the OCC's ability to identify and understand trends and innovations in the financial services industry, as well as the evolving needs of financial services consumers. More recently,
FINANCIAL SERVICES REGULATORY ALERT | OCTOBER 2016
the OCC has announced an outreach program to companies, plans to conduct research and collaborate with other financial regulators.
There are some examples, close to home, that perhaps can also be considered as we consider what additional responsibilities for Canadian regulators we might propose. For example, within the Office of the Superintendent of Financial Institutions ("OSFI") there is a small deposit taking institutions division. This division has grown out of the concerns of smaller deposit-taking institutions that they have been unable to cope successfully with the burden of regulation that can be more easily absorbed by larger financial institutions. One could imagine OSFI establishing a group of officials dedicated to the facilitation of fintech related activities by regulated financial institutions, either internal efforts within such institutions, or in partnership with third parties, where such arrangements are subject to the outsourcing rules applicable to financial institutions regulated by OSFI.
Provincially, many provinces have provincial financial sector regulators who enjoy close working relationships with their respective financial sector communities for which they are responsible. FSCO in Ontario, AMF in Qubec and FICOM in British Columbia are perhaps the logical partners in any outreach in this regard, in addition to the OSC in the case of Ontario.
Those in fintech are the strongest advocates for additional effort by all stakeholders to protect consumers from fraud and the importance of a comprehensive government strategy around cybersecurity to ensure adequate support for the safe operation of their businesses. Finding a solution to helping a consumer manage this issue will need to be innovative, cost-effective and repeatable.
We note that Toronto Financial Services Alliance ("TFSA") has identified cybersecurity as an area of priority and its efforts to create a cybersecurity hub seems particularly apt given the critical importance of security to the future of the fintech sector in Canada.
Finding a Balance Between Privacy and Open Access
Many fintech companies see opportunities in exploiting the vast amount of data created by the governments and the financial services sector. In the UK, governments have become increasingly active in opening up the fintech sector by improving access to privately-owned common infrastructure.
Closely linked to the area of big data is the related field of artificial intelligence. Products in this area may use data and analytics to automate decisionmaking processes, technology that may be particularly valuable when the speed and/or volume of information means that real-time human analysis is unfeasible.
Here again, we need both levels of government, each having legitimate interests in the regulation of big data and potentially artificial intelligence, to work together in creating a relevant regulatory framework.
Promoting Fintech Collaboration
In addition to the cybersecurity hub, the TFSA has established Fintech Solutions Lab project to provide greater connectivity between financial institutions and the fintech community, to more effectively meet industry needs. It is not another incubator or accelerator, but rather a "concierge" type approach, tailored to helping companies more cost effectively reach out to broader fintech ecosystem to meet their needs. TFSA has worked with financial companies to introduce them to particular fintech firms offering potential solutions to the problems the financial companies had identified.
TFSA is also continuing to meet with financial companies to identify their specific technology needs and through the Ontario Centres of Excellence ("OCE") to identify potential research or start-up partners to meet them. OCE has been at the forefront of promoting collaboration within the fintech community.
Community organizations in other Canadian cities can and are beginning to pursue similar networking strategies.
Call to Action
Recently Innotribe, the innovation arm of SWIFT and Innovate Finance, the trade body for the UK's fintech sector have set up a "federation" that they believe will enable global hubs to share business knowledge, give start-ups access to new markets and provide the sector with a global voice. Canadian financial centres need to be part of this initiative.
Exploding the Myth of Inferiority Promoting Canada Globally as a Leading Fintech Centre
Many of those who are currently commenting on the state of fintech in Canada start from the proposition that Canada is behind. That view simply does not help Canada gain international recognition for what it has accomplished and the significant and growing ecosystem that is already in place. For example, a very recent report, commissioned by the TFSA and the OCE, and written by Deloitte, found that Canada ranks as the fourth largest innovation hub in the world for cybersecurity.
Nor does it fully acknowledge that our leading financial institutions are already invested heavily in developing and implementing new products and services that draw upon fintech. Indeed there are a growing number of fintech developments and partnerships being reported, virtually daily, between leading Canadian financial institutions and fintech companies, both domestic and international.
There are also a number of important efforts to promote Canadian fintech. In Montral the Canadian Fintech Forum has just held its third annual event and the Vancouver based Digital Finance Institute has established annual fintech events in Vancouver and Toronto. In addition, in the Toronto-Waterloo corridor the TFSA has a growing program of fintech activities and organizations such as DMZ, MaRS, OneEleven and Communitech who are helping to produce a steady stream of positive ventures. There is a clear opportunity for these groups, working with Canadian federal and provincial governments, to work together to promote fintech both in Canada and internationally.
It is time for governments, the financial-services industry, and other interested stakeholders to focus on how we can come together and work towards creating the optimal regulatory environment for fintech in Canada. We have reason to be very optimistic that this objective can be accomplished. A decade ago Toronto languished as a lower tier international financial centre. Through a tremendous collaboration of leading financial institutions, governments and major consulting firms, TFSA was established as a unique public private partnership dedicated to building Toronto as a global financial services centre. Today, Toronto is ranked as a leading global financial centre in the same tier as London, New York, Tokyo and Singapore. We can certainly achieve the same result with respect to our ambitions for Canada to become a leading global fintech hub.
BLG'S FINTECH TEAM
Jeffrey Graham T 416.367.6174 [email protected]
Stephen Redican T 416.367.6134 [email protected]
Robert Dawkins T 604.640.4027 [email protected]
Eric Boehm T 416.367.6041 [email protected]
Olivier Tardif T 514.954.2642 [email protected]
Manoj Pundit T 416.367.6577 [email protected]
Anthony Milazzo T 416.367.6666 [email protected]
Gord Raman T 416.367.6232 [email protected]
Ross McGowan T 604.640.4173 [email protected]
FINANCIAL SERVICES REGULATORY GROUP
National Leader Jeffrey S. Graham
Toronto 416.367.6174 [email protected]
Regional Leaders Olivier Tardif Stephen J. Redican Ross McGowan
Insurance Corporate Regulatory Contact
Toronto 416.367.6121 [email protected]
2016 Borden Ladner Gervais LLP
BORDEN LADNER GERVAIS LLP LAWYERS | PATENT & TRADEMARK AGENTS Calgary Centennial Place, East Tower 1900, 520 3rd Ave S W, Calgary, AB, Canada T2P 0R3 T 403.232.9500 | F 403.266.1395 Montral 1000, De La Gauchetire St W, Suite 900 Montral, QC, Canada H3B 5H4 T 514.879.1212 | F 514.954.1905 Ottawa World Exchange Plaza, 100 Queen St, Suite 1300 Ottawa, ON, Canada K1P 1J9 T 613.237.5160 | F 613.230.8842 (Legal) F 613.787.3558 (IP) | [email protected] (IP) Toronto Bay Adelaide Centre, East Tower 22 Adelaide St W, Suite 3400, Toronto, ON Canada M5H 4E3 T 416.367.6000 | F 416.367.6749 Vancouver 1200 Waterfront Centre, 200 Burrard St, P.O. Box 48600 Vancouver, BC, Canada V7X 1T2 T 604.687.5744 | F 604.687.1415 blg.com
Borden Ladner Gervais LLP is an Ontario Limited Liability Partnership.