Torys LLP | Brigitte Goulard , Konata Lake, Molly Reynolds | Nov 15, 2021
Approaches and Developments
Canada has a strong, globally competitive financial sector that has proven to be stable, resilient and well respected. However, compared to other developed countries, Canada has experienced delays in rolling out frameworks, including legislation, that enable the fintech ecosystem to evolve in a way that is reliable and safe for end users, while still allowing them to leverage the power of technology.
Fortunately, several key government and regulatory efforts are now gaining momentum and will enable Canadians and fintechs to benefit from the following trends:
Banking as a service
Banking as a service describes a model where regulated financial institutions integrate their digital banking services offering directly into the products of other non-regulated entities. This allows retailers and merchants with a strong brand presence to offer their customers digital banking products (debit cards, loans, etc.) without having to incur the substantial costs of obtaining a banking licence.
Although the banking as a service offering is currently not as widespread in Canada as in other jurisdictions, this may change as a result of Canada's plan to give banks greater flexibility to engage with fintechs, to modernise its payment systems and to introduce an open banking framework.
Fintech offerings to small- and medium-sized businesses (SMBs)
The high number of SMBs in Canada have a significant impact on our economy; their vulnerabilities to downturns such as the pandemic highlight the importance of collaboration between financial institutions, businesses and government to develop fintech solutions to support this segment of the economy. As SMBs reopen following the pandemic, they will be very receptive to new digital platforms enabling them to better, and more profitably, serve their customers.
Fintech lending sector
The fintech lending sector - and, in particular, the Buy Now Pay Later offering, which already has a strong presence - in Canada is expected to continue growing. The non-bank lending platforms (sometimes offered in partnerships with regulated entities) offered by retailers provide consumers an alternative payment method to pay for goods and services allowing them to pay in instalments, generally without fees or interest. Very attractive from a retailer and customer perspective, these products can be challenging from a regulatory perspective, and could result in more scrutiny from regulators as they continue to thrive in the marketplace.
The Canadian Fintech landscape
The Canadian fintech ecosystem is internationally competitive. In a recent report, Toronto ranked in 8th place among global cities, while Vancouver, Montréal and Calgary placed 12th, 14th and 16th, respectively1.
From coast to coast, fintechs are relatively well distributed across Canada (based on population concentration). 415 fintechs are based in Ontario, 103 are based in Québec, 165 are based in Western Canada (with the vast majority of those based in British Columbia) and 14 are based in the Atlantic provinces2.
Canadian jurisdictions are also seeing significant in-bound investment from fintechs. Montréal, is one of Canada's leading fintech hubs, and houses a number of key investors. While the Atlantic provinces have relatively smaller hubs, there is significant activity such as a US$2.75 billion acquisition of a St. John's-based fintech by Nasdaq in late 2019.
What's captured in fintech
Fintech is a broad term that captures many different verticals. Each of these verticals are large markets in themselves, differentiated by the problems they aim to solve. The most common (and largest) Canadian fintechs categories in operation are Payments, Lending (personal and small to medium businesses), and Back Office. However, fintechs in RegTech (i.e., risk management), WealthTech and Personal Financial Management (PFM) are also seeing significant growth. RegTech startups continue to set funding records, WealthTech activity has seen a significant increase in retail and enterprise activity and PFM has responded strongly to the financial challenges of the COVID-19 pandemic, with some PFM fintechs responding particularly well to provide financial support to Canadians in economically uncertain times.
The ecosystem
Any healthy startup ecosystem needs accelerators to support the growth of established firms and incubators to nurture the earliest stages of a company. Though competitive to get into, they provide important services for fintech firms such as expert advice, funding, mentorship, networking and training3.
The funding for such programs typically come from a variety of sources including financial institutions and technology companies. Well-known accelerators and incubators in Canada include Innovate Calgary, Ryerson's Digital Media Zone (DMZ), and MaRS Discovery District. DMZ has a specific fintech stream: DMZ-BMO Fintech Accelerator4.
The talent
In 2020, CBRE research assessing tech labour and the ability of markets to score tech talent concluded that tech talent is particularly resilient and has proven to be so during the COVID-19 pandemic. Canada has been benefiting from the fintech "brain gain" (the difference between the number of technology degrees granted versus the number of technology jobs created). Toronto ranked fourth just behind San Francisco Bay Area, Washington, D.C. and Seattle, among 50 of the largest markets which were analyzed to create a scorecard ranking them comparatively using metrics like market depth, vitality, and attractiveness to companies seeking talent and talent seeking employment. Data from the Business Development Bank of Canada (2018) has also shown that Canada's skilled foreign workers as a percentage of its population has been on the rise and is six times more concentrated than that of the U.S. (attributable to a progressive labour migration policy). Though the pandemic did see a drop off in immigration, initiatives such as virtual work permits have been proposed as economic stability returns. Also contributing to domestic growth has been the strength of Canada's university-backed incubator system5.
REGULATORY BODIES AND APPROACHES
The Canadian financial regulatory system is fragmented with oversight of various parts of the financial system divided among a variety of federal and provincial regulators.
Federal
The three principal federal regulators of financial institutions are: the Office of the Superintendent of Financial Services (OSFI); the Canadian Deposit Insurance Corporation (CDIC); the Financial Consumer Agency of Canada (FCAC); and the Bank of Canada (BOC), The Financial Transactions and Reports Analysis Centre of Canada (FINTRAC), Office of the Privacy Commissioner of Canada (OPC)
Provincial regulators
Provincial securities commissions regulate the securities markets with a focus on investor protection and ensuring efficient markets. Self-regulatory organizations also play a role in securities regulation. The Investment Industry Regulatory Organization of Canada (IIROC), overseeing investment dealers, and the Mutual Fund Dealers Association of Canada (MFDA), regulating mutual fund dealers, are two examples.
Fintech businesses have been encouraged to engage with staff of the Canadian securities regulators through a "regulatory sandbox" to discuss novel products and services, the anticipated treatment under applicable securities laws, and to obtain any required approvals and/or exemptive relief to operate in Canada.
The National Crowdfunding & Fintech Association (NCFA Canada) is a financial innovation ecosystem that provides education, market intelligence, industry stewardship, networking and funding opportunities and services to thousands of community members and works closely with industry, government, partners and affiliates to create a vibrant and innovative fintech and funding industry in Canada. Decentralized and distributed, NCFA is engaged with global stakeholders and helps incubate projects and investment in fintech, alternative finance, crowdfunding, peer-to-peer finance, payments, digital assets and tokens, blockchain, cryptocurrency, regtech, and insurtech sectors. Join Canada's Fintech & Funding Community today FREE! Or become a contributing member and get perks. For more information, please visit: www.ncfacanada.org
One of the world's largest cryptocurrency exchanges, Coinbase, is beta testing a new subscription-based service that would offer its members perks, such as fee-free trading. It stands to impact not only the cryptoeconomy, but people--and businesses--worldwide. However, the strategic genius of the steadfast startup turned $100 billion dollar company, isn't isolated to its success in radically--and repeatedly--tearing down walls. It's how it does so, using one simple strategy that's so mundane the world's most innovative tend to be blind to it.
Following the news of its new subscription-based service, speculation surrounds Coinbase One, with some arguing that its purpose is to simply better compete with Robinhood, which already offers a subscription service, Robinhood Gold. However, there is a major difference between the two subscription services.
Coinbase One, in its current beta form, offers an account protection feature in addition to the elimination of trading fees (though spread fees still apply) in lieu of subscription fees. With Coinbase One, members could be reimbursed up to $1 million in the case of hacked accounts and stolen funds.
By offering account protection, Coinbase is essentially offering insurance--just as traditional financial institutions do. This is a major step that helps to stabilize the crypto world, bridge the gap between worlds, instill trust, and lower the barriers to entry for the public at large. And this isn't isolated to the crypoeconomy, and its particular growth.
It is a universal truth across markets, industries, and nations that customer acquisition and product adoption requires a degree of familiarity. In fact, it's the strategy Apple uses to enter new markets and it's how Microsoft dethroned Apple. To capture more of a potential market, even the most innovative companies pursuing radical change, must bake in some traditional ingredients to make the product feel at least slightly familiar.
The National Crowdfunding & Fintech Association (NCFA Canada) is a financial innovation ecosystem that provides education, market intelligence, industry stewardship, networking and funding opportunities and services to thousands of community members and works closely with industry, government, partners and affiliates to create a vibrant and innovative fintech and funding industry in Canada. Decentralized and distributed, NCFA is engaged with global stakeholders and helps incubate projects and investment in fintech, alternative finance, crowdfunding, peer-to-peer finance, payments, digital assets and tokens, blockchain, cryptocurrency, regtech, and insurtech sectors. Join Canada's Fintech & Funding Community today FREE! Or become a contributing member and get perks. For more information, please visit: www.ncfacanada.org
Rather than provide concrete proposals and guidelines for federal agencies to implement immediately, the report urges Congress to pass a new law.
The President’s Working Group on Financial Markets released a new report on stablecoins this week. On the surface, the Biden administration punted. Dig deeper, and the details make the policy whiff look much worse.
For starters, the report fails to provide the regulatory clarity that the crypto industry has been seeking for years. Rather than provide concrete proposals and guidelines for federal agencies to implement immediately, the report urges Congress to pass a new law.
The report even disappointed groups that typically support more regulation. Todd Phillips, the director of financial regulation at the Center for American Progress, told American Banker “I think this is a very problematic report, in that the recommendations really just look at what Congress can do, and not the current authorities of the regulators.”
But this critique is minor compared to the details the report does provide.
“limit stablecoin issuance, and related activities of redemption and maintenance of reserve assets, to entities that are insured depository institutions.” In case that’s not clear enough, the report reiterates that the bill should “prohibit other entities from issuing payment stablecoins.”
The administration apparently believes that stablecoins can harm their users and pose systemic risks, but that everyone should just wait for Congress to act. Even better, the administration wants Congress to force these supposedly risky stablecoins to be issued only by federally insured banks.
That’s mindboggling enough, but it takes supreme audacity to make this recommendation while also calling for new regulations to prevent stablecoins from leading to “an excessive concentration of economic power.”
All crypto innovation—just like most other advances in U.S. payments technology—has been taking place outside of the banking sector.
Preventing everyone outside the banking sector from issuing stablecoins removes a major threat of competition from the banking industry. It’s a move that makes no sense if the goal is to prevent excessive concentration.
The truly laughable part is that the logic implies the concentration of economic power is bad, but not when the federal government orchestrates it and forces taxpayers to clean up any of the potential mess.
The National Crowdfunding & Fintech Association (NCFA Canada) is a financial innovation ecosystem that provides education, market intelligence, industry stewardship, networking and funding opportunities and services to thousands of community members and works closely with industry, government, partners and affiliates to create a vibrant and innovative fintech and funding industry in Canada. Decentralized and distributed, NCFA is engaged with global stakeholders and helps incubate projects and investment in fintech, alternative finance, crowdfunding, peer-to-peer finance, payments, digital assets and tokens, blockchain, cryptocurrency, regtech, and insurtech sectors. Join Canada's Fintech & Funding Community today FREE! Or become a contributing member and get perks. For more information, please visit: www.ncfacanada.org
On November 2, a Connecticut jury found that a series of digital-asset products linked to a cryptocurrency mining operation did not count as securities. The landmark jury verdict is among the first to decide whether cryptocurrency assets and products may count as securities.
The case presented the novel issue of whether the digital assets of GAW Miners LLC, a virtual mining company, were considered investment contracts.
The company originally sold physical mining equipment but began to offer a series of digital assets to customers. These assets included “hashlets,” or portions of the supposed computing power the company owned, “Hashpoints,” which could be converted into GAW’s “Paycoin” currency, and “Hashtakers” for storing Paycoin.
In a class-action suit, customers stated that these digital assets were unregistered securities being sold to defraud customers because GAW did not have the physical equipment they purported to sell. Ultimately, the jury found that the products were not unregistered securities, despite contrary findings by the SEC in a related action.
Law360 (November 2, 2021, 6:03 PM EDT) -- A series of digital-asset products linked to a cryptocurrency mining operation do not count as securities, a Connecticut jury found Monday in what a defense lawyer called a first-of-its-kind verdict.
The jury on Monday cleared Stuart Fraser of liability for GAW Miners LLC's alleged misconduct and found the products in question, which included a virtual currency and a digital wallet, were not investment contracts. Whether certain crypto-related products are securities has been a hot-button question among regulators and in the cryptocurrency industry.
The case, which dates back to 2016, centers around cryptocurrency mining operations, which refers to the use of computing power to verify cryptocurrency transactions.
GAW Miners LLC initially sold physical mining equipment to customers but, along with a company called ZenMiner LLC, began offering remote management software that purportedly allowed customers to control their mining hardware online, according to the class of customers bringing the action.
The customers alleged GAW and ZenMiner never actually had as much equipment as they claimed. GAW Miners and ZenMiner were found in default earlier in the case, court filings show.
Faced with potential demands to send customers equipment they didn't have, the companies turned to selling "hashlets," which gave purchasers a portion of the computing power the companies purportedly owned without receiving the physical hardware, according to the suit.
The plaintiffs alleged that even with the "hashlets," the companies did not have as much computing power as claimed and instead used the money from new customers to pay off older customers.
GAW Miners and ZenMiner also sold so-called "Hashpoints," which the purchasers described as promissory notes that could be converted into the companies' virtual currency, Paycoin. "Hashstakers" were virtual wallets for storing Paycoin.
Homero Joshua Garza, the companies' co-founder, pled guilty to wire fraud in a related criminal action in 2017 and agreed to pay damages in a case brought by the U.S. Securities and Exchange Commission. He was dropped from the customers' case in 2016.
The customers alleged all four of the products — Hashlets, Hashpoints, Paycoin and HashStakers — were unregistered securities, and that Fraser was liable for the sales because his role at the companies was comparable to that of a partner or director.
But the jury disagreed, finding none of the products were securities, not even Hashlets, which the SEC described as a security in its case against Garza. Weiner said the defense had argued, apparently convincingly, that Hashlets were not a passive investment and that customers actively controlled their investment.
The National Crowdfunding & Fintech Association (NCFA Canada) is a financial innovation ecosystem that provides education, market intelligence, industry stewardship, networking and funding opportunities and services to thousands of community members and works closely with industry, government, partners and affiliates to create a vibrant and innovative fintech and funding industry in Canada. Decentralized and distributed, NCFA is engaged with global stakeholders and helps incubate projects and investment in fintech, alternative finance, crowdfunding, peer-to-peer finance, payments, digital assets and tokens, blockchain, cryptocurrency, regtech, and insurtech sectors. Join Canada's Fintech & Funding Community today FREE! Or become a contributing member and get perks. For more information, please visit: www.ncfacanada.org
This Guideline establishes OSFI’s expectations related to technology and cyber risk management and applies to all federally regulated financial institutions (FRFIs). These expectations aim to support FRFIs in developing greater resilience to technology and cyber risks.
FRFIs should implement the expectations in this Guideline commensurate with its size; the nature, scope and complexity of its operations; and risk profile. OSFI’s expectations are technology-neutral, anticipating the need for FRFIs to compete effectively and take full advantage of digital innovation while maintaining a sound technology posture.
Structure
A.2.1 This Guideline is organized into five domains. Each sets out key components of sound technology and cyber risk management.
Governance and Risk Management – Sets OSFI’s expectations for the formal accountability, leadership, organizational structure and framework used to support risk management and oversight of technology and cyber security.
Technology Operations – Sets OSFI’s expectations for management and oversight of risks related to the design, implementation and management of technology assets and services.
Cyber Security – Sets OSFI’s expectations for management and oversight of cyber risk.
Third-Party Provider Technology and Cyber Risk – Expanding on OSFI’s existing guidance for outsourcing and third-party risk, sets expectations for FRFIs that engage with third-party providers to obtain technology and cyber services and/or other services that give rise to cyber and/or technology risk.
Technology Resilience – Sets OSFI’s expectations for capabilities to deliver technology services through operational disruption.
Technology and cyber risks are governed through clear accountabilities and structures, and comprehensive strategies and frameworks.
A technology environment that is stable, scalable and resilient. The environment is kept current and supported by robust and sustainable technology operating processes.
A secure technology posture that maintains the confidentiality, integrity and availability of the FRFI’s technology assets.
Reliable and secure technology and cyber operations from third-party providers.
Technology services are delivered, as expected, through disruption.
The National Crowdfunding & Fintech Association (NCFA Canada) is a financial innovation ecosystem that provides education, market intelligence, industry stewardship, networking and funding opportunities and services to thousands of community members and works closely with industry, government, partners and affiliates to create a vibrant and innovative fintech and funding industry in Canada. Decentralized and distributed, NCFA is engaged with global stakeholders and helps incubate projects and investment in fintech, alternative finance, crowdfunding, peer-to-peer finance, payments, digital assets and tokens, blockchain, cryptocurrency, regtech, and insurtech sectors. Join Canada's Fintech & Funding Community today FREE! Or become a contributing member and get perks. For more information, please visit: www.ncfacanada.org
Regulator continues to be concerned about market manipulation
The U.S. Securities and Exchange Commission (SEC) rejected a proposed Bitcoin-based ETF, citing continued concerns about investor protection.
In a decision released Friday, the SEC rejected a proposed rule change from the Cboe BZX Exchange, Inc., which was required for it to list and trade the VanEck Bitcoin Trust.
The SEC said in its ruling that the proposal doesn’t meet the requirements of securities rules, particularly the obligation of exchanges to have rules “designed to prevent fraudulent and manipulative acts and practices” and “to protect investors and the public interest.”
According to the decision, the exchange argued that the SEC’s concerns about the potential manipulation of Bitcoin-based exchange-traded products have been “sufficiently mitigated” by developments including the growth of trading volume in Bitcoin futures, increased liquidity in the spot market for Bitcoin, and certain features of the ETF itself.
The exchange also argued that allowing trading in a Bitcoin ETF would limit risk to investors by giving them access to a regulated and transparent exchange-traded vehicle.
However, the commission concluded that the exchange didn’t establish that there are adequate safeguards against manipulation.
The regulator also stressed that its disapproval “does not rest on an evaluation of whether Bitcoin, or blockchain technology more generally, has utility or value as an innovation or an investment. Rather, the SEC rejected the proposed rule change because BZX has not met its burden to demonstrate that its proposal is consistent with the requirements” of securities rules, it said.
The National Crowdfunding & Fintech Association (NCFA Canada) is a financial innovation ecosystem that provides education, market intelligence, industry stewardship, networking and funding opportunities and services to thousands of community members and works closely with industry, government, partners and affiliates to create a vibrant and innovative fintech and funding industry in Canada. Decentralized and distributed, NCFA is engaged with global stakeholders and helps incubate projects and investment in fintech, alternative finance, crowdfunding, peer-to-peer finance, payments, digital assets and tokens, blockchain, cryptocurrency, regtech, and insurtech sectors. Join Canada's Fintech & Funding Community today FREE! Or become a contributing member and get perks. For more information, please visit: www.ncfacanada.org
The GBBC's Legal & Regulatory Group is pleased to announce the release of Volume I of the International Journal of Blockchain Law (IJBL). IJBL is an open access online journal of blockchain law, written and edited by lawyers, and designed to help business and non-legal communities better understand blockchain and digital assets.
The inaugural volume of the IJBL includes an article by U.S. Securities and Exchange (SEC) Commissioner Caroline Crenshaw on "DeFi Risk, Regulations, and Opportunities," as well as articles on the viability of crypto securities in the U.S., legal disputes involving Decentralized Autonomous Organizations (DAOs), Non-Fungible Tokens (NFTs), and smart contracts.
GBBC would like to extend a special thank you the international team of editors behind IJBL:
Editor-in-Chief: Dr. Matthias Artzt, Senior Legal Counsel, Deutsche Bank AG; Editor and Co-Author of the ‘Handbook of Blockchain Law’
Professor Locknie Hsu, Professor of Law, Singapore Management University
Stephen Palley, Partner, Anderson Kill
Andrea Tinianow, Chief Legal Officer, IOV Labs
Thiago Luís Sombra, Partner, Mattos Filho
Jake van der Laan, Chief Information Officer and Director, IT & Regulatory Informatics, Financial and Consumer Services Commission, New Brunswick, Canada (FCNB); Co-Author of ‘Handbook of Blockchain Law’
Gary D. Weingarden, Assistant Vice President, Data Protection Officer, Notarize, Inc.
The National Crowdfunding & Fintech Association (NCFA Canada) is a financial innovation ecosystem that provides education, market intelligence, industry stewardship, networking and funding opportunities and services to thousands of community members and works closely with industry, government, partners and affiliates to create a vibrant and innovative fintech and funding industry in Canada. Decentralized and distributed, NCFA is engaged with global stakeholders and helps incubate projects and investment in fintech, alternative finance, crowdfunding, peer-to-peer finance, payments, digital assets and tokens, blockchain, cryptocurrency, regtech, and insurtech sectors. Join Canada's Fintech & Funding Community today FREE! Or become a contributing member and get perks. For more information, please visit: www.ncfacanada.org