Against the backdrop of the FTX insolvency and its follow-on effects for the rest of the crypto-asset ecosystem, the Office of the Superintendent of Financial Institutions (OSFI), the Financial Consumer Agency of Canada (FCAC) and the Canada Deposit Insurance Corporation (CDIC) issued a joint statement supporting the principle of “same activity, same risk, same regulation”.
What you need to know
- Federally regulated entities that carry out crypto-related services or engage in crypto-asset activities are expected to adhere to all applicable current regulatory requirements and guidance.
- OSFI, FCAC and CDIC support the principle of “same activity, same risk, same regulation”.
- Federally regulated entities should be aware of (i) applicable prudential regulation; (ii) the new and enhanced requirements under the Financial Consumer Protection Framework; and (iii) crypto-assets' ineligibility for deposit insurance under the Canada Deposit Insurance Corporation Act.
Background
The joint statement follows prior statements by OSFI, including the Interim arrangements for the regulatory capital and liquidity treatment of crypto-asset exposures, which we discussed here last month, and OSFI's digital innovation roadmap, which describes OSFI's approaches to the regulation of digital financial technologies using the following four key pillars:
- advancing a policy framework;
- creating a regulatory sandbox;
- developing supervisory practices and tools; and
- conducting regular stakeholder engagements.
For purposes of the joint statement, “crypto-related activities” refer to activities such as, without limitation, acting as crypto-asset custodians; maintaining stablecoin reserves; issuing crypto and other digital assets; sub-custodial arrangements for crypto as well as dealing in any derivatives or securities financing transactions (or other assets referencing crypto); acting as market makers or exchange or redemption agents in regards to crypto-assets; participating in blockchain and distributed ledger-based settlement or payment systems (including performing node functions); and related activities such as finder activities and lending in regards to crypto-assets.
Same activity, same risk, same regulation
In the joint statement, OSFI, FCAC and CDIC support the principle of “same activity, same risk, same regulation” endorsed by the Financial Stability Board.
Plainly stated, this means that crypto-assets and crypto-asset intermediaries that perform an equivalent economic function to one performed by instruments and intermediaries of the traditional financial sector should be subject to equivalent regulation and oversight. Given the emerging and growing interlinkages between the crypto-asset ecosystem and the traditional financial system, such an approach seeks to promote consistency and comprehensiveness of regulatory, supervisory and oversight approaches between crypto-related activities and traditional financial sector activities.
Duties and responsibilities
Federally regulated entities must ensure any crypto-asset activities comply with existing federal financial laws, including the Bank Act, Insurance Companies Act, Trust and Loan Companies Act, and Proceeds of Crime (Money Laundering) and Terrorist Financing Act, as well as any applicable regulations and guidance issued by federal and provincial regulatory agencies.
Federally regulated entities are expected to also clearly understand the risks of any planned crypto-asset activities and ensure that these risks have been properly addressed. Federally regulated entities should be aware of:
- Prudential regulation - By referring to OSFI's recently published guidelines in the recently published Interim arrangements for the regulatory capital and liquidity treatment of cryptoasset exposures and OSFI's digital innovation roadmap.
- Consumer protection - The FCAC expects regulated entities planning on engaging in crypto-related services or crypto-asset activities to notify the FCAC and provide any information requested by FCAC. Regulated entities should also be mindful of compliance with the new and enhanced requirements under the Financial Consumer Protection Framework.
- Deposit insurance - Federally regulated entities should take note that crypto-assets are not eligible for deposit insurance under the Canada Deposit Insurance Corporation Act.
What's next
The joint statement confirms OSFI's, FCAC's, CDIC's and other federal agencies' views that digital assets and decentralized finance applications require prudent and thoughtful oversight and regulatory approaches. As the interlinkages between the crypto-asset ecosystem and traditional financial system continue to expand, federal agencies will continue to closely monitor the risks posed by crypto-assets. We expect further updates to applicable regulatory requirements and additional guidance to be provided to address associated financial stability risks posed by entities carrying out crypto-related services or engaging in crypto-asset activities.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
