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Proposed 2023 AML Changes: Mortgage Lenders and Armoured Car Services

Background

February seems to be the month for proposed legislative changes.

On February 18, 2023, draft amendments to the regulations under the Proceeds of Crime Money Laundering and Terrorist Financing Act (PCMLTFA), and a net-new draft regulation, were published in the Canada Gazette. If you’re the type that likes to read original legislative text, you can find it here. We (thanks Rodney) also created a redlined version of the regulations, with new content showing as tracked changes, which can be found here.

These changes are meant to renew and improve Canada’s anti-money laundering (AML) and Counter Terrorist Financing (CTF) regime, adapting to new money laundering (ML) and terrorist financing (TF) risk. One of the most significant changes, in our opinion, is the introduction of two new regulated entity types, mortgage lenders and armoured car companies.

Currently, mortgages issued by financial entities are captured under the PCMLTFA but these amendments would make all entities involved in the mortgage lending process (brokers responsible for mortgage origination, lenders responsible for underwriting the loan, and administrators responsible for servicing the loan) reporting entities. The intent here is to level the playing field between regulated and unregulated mortgage lenders, and to deter misuse of the sector for illicit activities.

While the activity of transportation is not currently supervised for AML purposes per se, armoured car carriers provide services largely to regulated entities. Given the flow of funds that is typically seen in this sector, reconciliation and identification of the origin of funds can sometimes be challenging, and allows funds to move with some degree of anonymity, which is an ML/TF vulnerability.

The draft regulations also introduce new requirements for correspondent banking relationships, and additional requirements related to the Money Services Business (MSB) registration. There are also some technical amendments related to existing reporting requirements and changes related to Administrative Monetary Penalties (AMPs).

Lastly, a new regulation would introduce a prescribed formula for the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) to assess the expenses it incurs in the administration of the PCMLTFA against reporting entities. Such models are seen from other regulators, such as the Office of the Superintendent of Financial Institutions (OSFI) and the Financial Consumer Agency of Canada (FCAC). Currently, FINTRAC is funded through appropriations.

In the following sections, we have summarized what we feel are the most important requirements to note.

Armoured Car Companies

The proposed changes would require a company that engages in “transporting currency or money orders, traveller’s cheques or other similar negotiable instruments” (except for cheques payable to a named person or entity) to be considered an MSB. As such, the following obligations will have to be met:

  • Development of a compliance program;
  • Maintaining an up-to-date MSB registration with FINTRAC;
  • Conducting compliance effectiveness reviews;
  • Reporting certain transactions;
  • Identifying customers;
  • Record keeping;
  • Risk ranking customers and business relationships;
  • Conducting transaction monitoring and list screening;
  • Conducting enhanced due diligence and transaction monitoring for high-risk customers and business relationships; and
  • Follow ministerial directives and transaction restrictions.

One record keeping obligation to note, which is new for armoured car companies, is the requirement to record the following information when transporting CAD 1,000 or more of cash or virtual currency, or CAD 3,000 or more in money orders or similar negotiable instruments:

  • The date and location of collection and delivery;
  • The type and amount of cash, virtual currency or negotiable instrument transported;
  • The name and address of the person or entity that made the request, the nature of their principal business/occupation and, in the case of an individual, their date of birth;
  • The name and address, if known, of each beneficiary;
  • The number of every account affected by the transport, the type of account, and the name of the account holder;
  • Every reference number that is connected to the transport, and has a function; equivalent to that of an account number; and
  • The method of remittance.

An additional requirement that will apply to armoured car companies is in relation to PEP determinations (existing PEP requirements for MSBs still apply). Specifically, a PEP determination is required whenever a person requests that the MSB transport more than CAD 100,000 in cash or virtual currency, or in an amount that is not declared.

Under the proposed regulations, there are some exemptions for reporting that are noteworthy. Large Cash and Large Virtual Currency reporting requirements will not apply where there is an agreement of transportation between:

  • The Bank of Canada and a person or entity in Canada;
  • Two financial entities;
  • Two places of business of the same person or entity; or
  • Canadian currency coins for purposes of delivery under the Royal Canadian Mint.

It is noteworthy, based on the definition, that there may be more than just armoured car companies that are captured under these new requirements. This will be clarified in guidance from FINTRAC that will follow publication of the legislation.

The requirements applicable to armoured car companies will come into force eight months after final publication in the Canada Gazette.

Mortgage Lending

The proposed regulations would require mortgage lenders, brokers, and administrators (mortgage participants) to put in place compliance regimes, similar to that of other regulated entities, which include the following:

  • Development of a compliance program;
  • Conducting compliance effectiveness reviews;
  • Reporting certain transactions;
  • Identifying customers;
  • Keeping records;
  • Risk ranking customers and business relationships;
  • Conducting transaction monitoring and list screening;
  • Conducting enhanced due diligence and transaction monitoring for high-risk customers and business relationships; and
  • Follow ministerial directives and transaction restrictions.

It is noteworthy, that many mortgage brokers already have existing voluntary AML compliance programs and already apply AML measures. This is in part due to various securities regulations and lending partners.

The requirements applicable to mortgage lending will come into force six months after final publication in the Canada Gazette.

Cost Recovery

As part of this round of regulatory changes, there is a net-new regulation, the Financial Transactions and Reports Analysis Centre of Canada Assessment of Expenses Regulations. This regulation will allow FINTRAC to pass on expenses, to reporting entities, that it incurs in the administration of the PCMLTFA. Only the following prescribed entity types are affected by this:

  • Banks and authorized foreign banks;
  • Life insurance companies;
  • Trust and loan corporations; and
  • Every entity that made more than 500 threshold reports during the previous fiscal year.

The regulations provide a formula that FINTRAC would use to calculate the assessment amounts payable by reporting entities on the basis of their annual asset value, and the volume of all threshold transaction reports submitted. For clarity, threshold transaction reports include Large Cash Transaction Reports (LCTRs), Large Virtual Currency Transaction Reports (LVCTRs), Electronic Funds Transfer Reports (EFTRs), and Casino Disbursement Reports (CDRs).

The requirement would come into force on April 1, 2024. This means FINTRAC would commence recovering costs from the 2024-2025 fiscal year and forward.

Other Changes

Enhancing MSB registration

Under the proposed amendments, as part of MSB registration, MSBs would now need to include the telephone numbers and email addresses of its president, directors and every person who owns or controls 20% or more of the MSB. This is in addition to current required information. Additionally, the number of the MSB’s agents, mandataries and branches in each country will be added (currently, only those within Canada are required).

This requirement will come into force twelve months after final publication in the Canada Gazette.

Streamlining requirements for sending AMPs

Under the proposed amendments, FINTRAC would be allowed to serve a reporting entity solely by electronic means when issuing an AMP. Currently, FINTRAC would also have to send an additional copy by registered mail.

This requirement would come into force on registration.

What Next?

There is a 30 day comment period (ending March 20, 2023) for the proposed regulations. It is strongly recommended that industry, and potentially impacted companies, review carefully and provide feedback. Comments can be submitted online via the commenting feature after each section of the proposed changes, or via email directly to Julien Brazeau, Associate Assistant Deputy Minister, Financial Sector Policy Branch, Department of Finance, 90 Elgin Street, Ottawa, Ontario K1A 0G5.

We’re Here To Help

If you have questions related to the proposed changes, or need help starting to plan, you can get in touch using the online form on our website, by emailing us directly at info@outliercanada.com, or by calling us toll-free at 1-844-919-1623.

Effectiveness Reviews for Dealers in Virtual Currency

Effective June 1, 2020, dealers in Virtual Currency activities were considered as Money Services Businesses (MSBs) and as such, must comply with MSB obligations under amendments made to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (PCMLTFA). One obligation is to have an AML effectiveness review at least once every two years. MSBs must start their effectiveness review no later than two years from the start of their previous review or in the case of dealers in Virtual Currency, no later than June 1, 2022, the date they were considered to be MSBs under law.

Such reviews must test your compliance program and effectiveness of your operations. Our reviews follow a similar format to examinations conducted by the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC), which you can read more about in a previous Blog Post.

We’re Here To Help

If you have not yet engaged or commenced your review, there are still a couple of weeks to be compliant. If you would like to engage Outlier to conduct your AML Compliance Effectiveness Review or have questions regarding this obligation, please get in touch.

Regulations for Dealers in Virtual Currency – June 2020

Effective June 1, 2020, entities engaged in Virtual Currency activities are considered as Money Services Businesses (MSBs), and are required to register with FINTRAC and comply with MSB obligations under amendments made to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (PCMLTFA) that were released on July 19, 2019. Those amendments also require, as of June 1, 2021, reporting large virtual currency transactions. The Department of Finance has since made further amendments to those amended regulations, published in the Canada Gazette on June 10, 2020.

To make reading these changes a little easier, we have created a redlined version of the regulations, with the most recent changes showing as tracked changes, which can be found here.

Dealers in Virtual Currency

It’s important to start by understanding what’s being regulated. This is best done by considering some of the definitions that have been added to the regulation.

fiat currency means a currency that is issued by a country and is designated as legal tender in that country. (monnaie fiduciaire)

funds means

(a) cash and other fiat currencies, and securities, negotiable instruments or other financial instruments that indicate a title or right to or interest in them; or

(b) a private key of a cryptographic system that enables a person or entity to have access to a fiat currency other than cash.

For greater certainty, it does not include virtual currency. (fonds)

virtual currency means

(a) a digital representation of value that can be used for payment or investment purposes that is not a fiat currency and that can be readily exchanged for funds or for another virtual currency that can be readily exchanged for funds; or

(b) a private key of a cryptographic system that enables a person or entity to have access to a digital representation f value referred to in paragraph (a). (monnaie virtuelle)

virtual currency exchange transaction means an exchange, at the request of another person or entity, of virtual currency for funds, funds for virtual currency or one virtual currency for another. (opération de change en monnaie virtuelle)

In terms of who will be regulated, businesses (whether or not the business is incorporated) that conduct transactions on behalf of their customers, including:

  • Exchanging digital currencies for fiat currencies; and
  • Exchanging between virtual currencies.

Current Obligations

Client Identification:

Dealers in Virtual Currency must identify individuals and confirm the existence of entities when they:

  • Remit or transmit funds (see definition above) of $1,000 or more at the request of a customer;
  • Conduct a foreign exchange transaction of $3,000 or more;
  • Enter into an ongoing service agreement with a customer (conduct transactions for a customer that is an entity);
  • Conduct a large cash transaction; and
  • Must take reasonable measures to identify individuals who conduct or attempt to conduct a suspicious transaction.

As of June 2021, there will be an additional requirement to identify virtual currency exchange transactions valued at CAD 1,000. This will include exchanging fiat and virtual currency, as well as exchanges between virtual currencies.

Information on acceptable methods to identify clients can be found on FINTRAC’s website. 

Reporting:

For reporting, there are two important dates. By June 1, 2020, dealers in virtual currency will need to report the same types of transactions that MSBs are currently required to report. These are:

  • Electronic Funds Transfers: if you send or receive international electronic funds transfers (EFTs), including wires, valued at CAD 10,000 or more, by or on behalf of the same customer, it must be reported to FINTRAC within 5 working days.
  • Large Cash Transactions: if you receive cash (this means fiat in the form of bills and/or coins) valued at CAD 10,000 or more in the same 24-hour period, by or on behalf of the same customer, it must be reported to FINTRAC within 15 calendar days.
  • Suspicious Transactions: if there are “reasonable grounds to suspect” that a completed attempted transaction is related to money laundering or terrorist financing, it must be reported to FINTRAC “as soon as practicable” of the discovery of a fact that led you to determine that the transaction was suspicious.

FINTRAC defines “as soon as practicable” in its Glossary as follows:

A time period that falls in-between immediately and as soon as possible within which a suspicious transaction report (STR) be submitted to FINTRAC. In this context, the report must be completed promptly, taking into account the facts and circumstances of the situation. While some amount of delay is permitted, it must have a reasonable explanation. The completion and submission of the report should take priority over other tasks.

FINTRAC has released more specific guidance on what “measures” enable reporting entities to have “reasonable grounds to suspect”.

More information on suspicious transaction reporting can be found on FINTRAC’s website.

  • Terrorist Property: if you’re in possession of property (which includes funds and virtual currency) that belong to a terrorist or terrorist group, it must be reported without delay, and the property must be frozen. In addition to reporting to FINTRAC, these reports are also sent to the CSIS and RCMP – by fax. In order to know if customers fall into this category, it is important to screen against the United Nations Security Council consolidated list. We’ve worked with some friends on a tool to make this easier, which you can try here (use the code Free100 for a free trial).

If you are required to report transactions valued at CAD 10,000 or more in a 24-hour period, you must have a mechanism in place to detect reportable transactions which is described in your compliance documentation.

By June 1, 2021, a new report will be introduced:

  • Large Virtual Currency Transactions: if you receive virtual currency valued at CAD 10,000 or more in the same 24-hour period, by or on behalf of the same customer, it must be reported to FINTRAC within 5 working days.

Amendments to the Amendments

The amendments to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (PCMLTFA) that were published in the Canada Gazette on June 10, 2020 create the following obligations for dealers in Virtual Currency:

Travel Rule

One of the most significant changes that will impact Virtual Currency Dealers as MSBs relates to a new requirement for records to be kept on all virtual currency transfers of CAD 1,000 or more.

The record must contain the following:

  1. include with the transfer, the name, address and, if any, the account number or other reference number of both the person or entity that requested the transfer and the beneficiary; and
  2. take reasonable measures to ensure that any transfer received includes the information referred to in paragraph (a) above.

Where the information required was not obtained, MSBs must have written risk-based policies and procedures for determining if the transaction should be suspended, rejected, or if another follow-up measure should be taken.

PEP

In addition to the existing requirement for MSBs to take reasonable measures to determine whether a client from whom they receive an amount of CAD 100,000 or more is a Politically exposed person (PEP), the amendments will require MSBs to make a PEP determination when they establish a business relationship with a client.

A reminder that a business relationship is defined as:

If a person or entity does not have an account with you, a business relationship is formed once you have conducted two transactions or activities for which you have to:

  • verify the identity of the individual; or
  • confirm the existence of the entity.

MSBs will also periodically need to take reasonable measures to determine whether a person with whom they have a business relationship is a PEP. We will have to await guidance from FINTRAC on this, but our guess is the frequency for determination will align to the frequency for customer information and identification updates.

Given the definition of a business relationship, we do not expect this requirement to be overly burdensome. If you currently conduct list screening, PEP screening could easily be added to that process. You are also able to ask the customer directly, while presenting the definition of a PEP, and record their response.

If a positive determination is made, the following records must be kept:

  1. the office or position, and the organization or institution, in respect of which the person is determined to be a politically exposed foreign person, a politically exposed domestic person or a head of an international organization, or a family member of, or a person who is closely associated with, one of those persons;
  2. the date of the determination
  3. the source, if known, of the person’s wealth;
  4. the risk rating; and
  5. the name of the member of senior management who reviewed the client, and the date the client was approved.

Other Relevant Blog Posts for Dealers in Virtual Currency

What’s happening in the VC community? 

Messaging Standard Overview

In October 2018, the Financial Action Task Force (FATF) adopted changes to its Recommendations to explicitly clarify that they apply to financial activities involving virtual assets (VA), effectively expanding the scope of the Recommendations to apply to virtual asset service providers (VASPs) and other obliged entities that engage in or provide covered VA activities.

“There exists a need for VASPs to adopt uniform approaches and establish common standards to enable them to meet their obligations resulting from the FATF Recommendations as they apply to affected entities”.

The implementation of obligations such as the travel rule for virtual currency transactions, in the majority of cases, would require an accompanying technology. To tackle issues such as this, a cross-industry, cross-sectoral joint working group of technical experts was formed in December 2019 and a new technical standard developed by the group.  The Joint Working Group on interVASP Messaging Standards (JWG) was established  by three leading international industry associations representing VASPs:
Chamber of Digital Commerce
Global Digital Finance
International Digital Asset Exchange Association 

We will have to wait for FINTRAC guidance to see if such a standard is provided as an example.

More information on the working group can be found here.

To download a copy of the standard anonymously, use this link:

DOWNLOAD THE STANDARD

We’re Here To Help

If you would like assistance in updating your compliance program and processes, or have any questions related to the changes, please get in touch!

Amending the Amendments! 2020 AML Changes for MSBs

Background

Back on July 10, 2019, the highly anticipated final version of the amendments to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (PCMLTFA) and its enacted regulations were published. However, on June 10, 2020, further amendments to those amended regulations were published in the Canada Gazette. To make reading these changes a little easier, we have created a redlined version of the regulations, with new content showing as tracked changes, which can be found here.

The purpose of this round of amendments is to better align measures with international standards and level the playing field across reporting entities by applying stronger customer due diligence requirements and beneficial ownership requirements to designated non-financial businesses and professions (DNFBPs). The amendments come into force on June 1, 2021.

We have summarized the changes that will have an impact on Money Services Businesses (MSB)s below.

Travel Rule

One of the most significant changes that will impact MSBs and Foreign Money Services Businesses (FMSB)s relates to a new requirement for records to be kept on all virtual currency transfers of CAD 1,000 or more.

The record must contain the following:

  1. include with the transfer, the name, address and, if any, the account number or other reference number of both the person or entity that requested the transfer and the beneficiary; and
  2. take reasonable measures to ensure that any transfer received includes the information referred to in paragraph (a) above.

Where the information required was not obtained, MSBs and FMSBs must have written risk-based policies and procedures for determining if the transaction should be suspended, rejected or if another follow-up measure should be taken.

PEP

In addition to the existing requirement for MSBs and FMSBs to take reasonable measures to determine whether a client from whom they receive an amount of CAD 100,000 or more is a Politically exposed person (PEP), the amendments will require MSBs and FMSBs to make a PEP determination when they establish a business relationship with a client.

A reminder that a business relationship is defined as:

If a person or entity does not have an account with you, a business relationship is formed once you have conducted two transactions or activities for which you have to:

  • verify the identity of the individual; or
  • confirm the existence of the entity.

MSBs and FMSBs will also periodically need to take reasonable measures to determine whether a person with whom they have a business relationship is a PEP. We will have to await guidance from FINTRAC on this, but our guess is the frequency for determination will align to the frequency for customer information and identification updates.

Given the definition of a business relationship, we do not expect this requirement to be overly burdensome. If you currently conduct list screening, PEP screening could easily be added to that process. You are also able to ask the customer directly, while presenting the definition of a PEP, and record their response.

If a positive determination is made, the following records must be kept:

  1. the office or position, and the organization or institution, in respect of which the person is determined to be a politically exposed foreign person, a politically exposed domestic person or a head of an international organization, or a family member of, or a person who is closely associated with, one of those persons;
  2. the date of the determination; and
  3. the source, if known, of the person’s wealth.

We’re Here To Help

If you would like assistance in updating your compliance program and processes, or have any questions related to the changes, please get in touch!

Amending the Amendments! 2020 AML Changes for Jewellers

Background

Back on July 10, 2019, the highly anticipated final version of the amendments to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (PCMLTFA) and its enacted regulations were published. However, on June 10, 2020, further amendments to those amended regulations were published in the Canada Gazette. To make reading these changes a little easier, we have created a redlined version of the regulations, with new content showing as tracked changes, which can be found here.

The purpose of this round of amendments is to better align measures with international standards and level the playing field across reporting entities by applying stronger customer due diligence requirements and beneficial ownership requirements to designated non-financial businesses and professions (DNFBPs). The amendments come into force on June 1, 2021.

We have summarized the changes that will have an impact on Dealers in Precious Metals and Stones (DPMS) below.

PEP

The amendments will require DPMSs to make a Politically exposed persons (PEP) determination when they enter into a business relationship with a client. In addition, they will also be required to take reasonable measures to determine whether a client from whom they receive an amount of CAD 100,000 or more is a PEP.

A reminder that a business relationship is defined as:

If a person or entity does not have an account with you, a business relationship is formed once you have conducted two transactions or activities for which you have to:

  • verify the identity of the individual; or
  • confirm the existence of the entity.

Given the definition of a business relationship, we do not expect this requirement to be overly burdensome. If you currently conduct list screening, PEP screening could easily be added to that process.

If a positive determination is made, the following records must be kept:

  1. the office or position, and the organization or institution, in respect of which the person is determined to be a politically exposed foreign person, a politically exposed domestic person or a head of an international organization, or a family member of, or a person who is closely associated with, one of those persons;
  2. the date of the determination; and
  3. the source, if known, of the person’s wealth.

Beneficial Ownership

The amendments will require DPMSs to comply with existing beneficial ownership requirements that apply to other reporting entities.

This means when identifying an entity, a reporting entity needs to collect the following information for all Directors and individuals who own or control, directly or indirectly, 25% or more of the organization:

  • Their full legal name;
  • Their full home address; and
  • Information establishing the ownership, control, and structure of the entity.

A record of the reasonable measures to confirm the accuracy of the information, when it is first obtained and in the course of ongoing monitoring of business relationships, must be retained.

We’re Here To Help

If you would like assistance in updating your compliance program and processes, or have any questions related to the changes, please get in touch!

Are You a Foreign Money Services Business?

Background

On July 10, 2019 amendments to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (PCMLTFA) and its enacted regulations were released in the Canada Gazette. The amendments require entities that conduct MSB activities from outside of Canada, directed towards Canadians, to be considered Foreign Money Services Businesses (FMSBs) and therefore comply with Canadian AML obligations.  Foreign MSBs must register with the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) and become compliant by June 1, 2020. Check out our blog post to see what your full requirements are.

What Is A Money Services Business?

You are considered an MSB in Canada if your business offers any of the following services:

  • Foreign exchange dealing;
  • Remitting or transmitting funds;
  • Issuing or redeeming money orders, traveller’s cheques and other negotiable instruments; or
  • Dealing in virtual currencies.

What Is A Foreign Money Services Business?

You are considered an FMSB if all of the following criteria applies to your business:

  • The person or entity is engaged in the business of providing at least one money services business (MSB) service;
  • The person or entity does not have a place of business in Canada;
  • The person or entity directs its MSB services at persons or entities in Canada; and
  • They provide these services to clients in Canada. 

For further clarity, you must direct services at persons or entities located in Canada. FINTRAC clarifies that directing services means that the services offered takes into consideration a Canadian audience. For example, if marketing or advertising materials are used with the intent to promote services and to acquire business from persons or entities in Canada. Where a business advertises online, but may not specifically exclude Canadian IP addresses, this fact on its own would not constitute directing services at persons or entities in Canada.

A business would be seen as directing services at persons or entities in Canada if at least one of the following applies:

  • The business’s marketing or advertising is directed at persons or entities located in Canada; 
  • The business operates a “.ca” domain name; or
  • The business is listed in a Canadian business directory.

Note that additional criteria may be considered when determining whether you are directing services at persons or entities in Canada. Examples of the additional criteria that may be considered is outlined in FINTRAC’s FMSB Annex 1.

We’re Here To Help

If you are, or think you may be, a foreign MSB and have any questions related to your compliance obligations in Canada, please get in touch!

Amending the Amendments!

Background

Back on July 10, 2019, the highly anticipated final version of the amendments to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (PCMLTFA) and its enacted regulations were published. However, on February 15, 2020, further proposed amendments to those amended regulations was published in the Canada Gazette. To make reading these changes a little easier, we have created a redlined version of the regulations, with new content showing as tracked changes, which can be found here.

The Regulatory Impact Statement for this round of proposed changes states the following: “The proposed amendments to the regulations would strengthen Canada’s AML/ATF Regime, align measures with international standards and level the playing field across reporting entities by applying stronger customer due diligence requirements and beneficial ownership requirements to designated non-financial businesses and professions (DNFBPs); modifying the definition of business relationship for the real estate sector; aligning customer due diligence measures for casinos with international standards; aligning virtual currency record-keeping obligations with international standards; clarifying the cross-border currency reporting program; clarifying a number of existing requirements; and making minor technical amendments”. The proposed amendments are expected to come into force on June 1, 2021.

As with all proposed changes, there is a comment period. This comment period is much shorter than the last one, at only 30 days. For anyone interested in commenting on the proposed changes, comments are to be addressed to Lynn Hemmings, Director General, Financial Crimes and Security Division, Financial Sector Policy Branch, Department of Finance, 90 Elgin Street, Ottawa, Ontario K1A 0G5 or email: fin.fc-cf.fin@canada.ca.

While these are proposed changes, guidance from FINTRAC related to the amendments to regulation would hopefully be seen ahead of the coming into force dates of the final version.

We have summarized what this could mean for your business below.

Money Services Businesses

PEP

The most significant proposed change for Money Services Businesses (MSB)s is related to Politically exposed persons (PEP) determinations. Currently, a PEP determination must be made for international EFTs of CAD 100,000 or more. The proposed regulations will require MSBs to make a PEP determination when the MSB enters into a business relationship with a person.

If you currently conduct list screening, PEP screening could easily be added to that process.

Dealers in Virtual Currency

Travel Rule

For dealers in virtual currency, there is an additional proposed requirement on top of the requirements that were published in the last round of AML changes.  The proposed amendments add the requirement for records to be kept for virtual currency transfers of CAD 1,000 or more.

The record must contain the following:

  1. include with the transfer, the name, address and, if any, the account number or other reference number of both the person or entity that requested the transfer and the beneficiary; and
  2. take reasonable measures to ensure that any transfer received includes the information referred to in paragraph (a) above.

If the information required is not obtained, a determination of whether the transaction should be suspended or rejected will need to be made.

Given the nature of virtual currency transfers, it will be interesting to see how this requirement plays out, as currently, there are no technology solutions (that we are aware of) that would solve for this.

A reminder that dealers in virtual currency will be considered MSBs as of June 1, 2020. Check out our blog post for a full list of regulatory requirements related to dealers in virtual currency.

Real Estate

Business Relationship

One of the most significant proposed changes for real estate developers, brokers and sale representatives is related to the definition of a business relationship. Currently, a business relationship is defined as:

If a person or entity does not have an account with you, a business relationship is formed once you have conducted two transactions or activities for which you have to:

  • verify the identity of the individual; or
  • confirm the existence of the entity.

The proposed amendments will change that definition for real estate developers, brokers and sale representatives to only one transaction.

For business relationships, a reporting entity must:

  • keep a record of the purpose and intended nature of the business relationship;
  • conduct ongoing monitoring of your business relationship with your client to:
    • detect any transactions that need to be reported as suspicious;
    • keep client identification and beneficial ownership information, as well as the purpose and intended nature records, up-to-date;
    • reassess your clients risk level based on their transactions and activities; and
    • determine if the transactions and activities are consistent with what you know about your client;
  • keep a record of the measures you take to monitor your business relationships and the information you obtain as a result.

We will have to wait for guidance to see how ongoing monitoring obligations applies to the real estate sector if this change takes effect.

PEP

The proposed amendments will require real estate developers, brokers and sale representatives to make a Politically exposed persons (PEP) determination when they enter into a business relationship (as defined above) with a client. In addition, they will also be required to take reasonable measures to determine whether a client from whom they receive an amount of CAD 100,000 or more is a PEP.

Beneficial Ownership

The proposed amendments will require real estate developers, brokers and sale representatives to comply with existing beneficial ownership requirements that apply to other reporting entities.

This means when identifying an entity, a reporting entity needs to collect the following for all Directors and individuals who own or control, directly or indirectly, 25% or more of the organization:

  • Their full legal name;
  • Their full home address; and
  • Their role and/or ownership stake in the organization.

Given the obligation is to obtain, rather than verify, such information, we do not expect this requirement to be overly burdensome for the real estate sector.

Dealers in Precious Metals and Stones

PEP

Dealers in Precious Metals and Stones (DPMS)s will be required to make a PEP determination when they enter into a business relationship with a client. In addition, a DPMS will be required to take reasonable measures to determine whether a person from whom they receive an amount of CAD 100,000 or more is a PEP.

A reminder that a business relationship is defined as:

If a person or entity does not have an account with you, a business relationship is formed once you have conducted two transactions or activities for which you have to:

  • verify the identity of the individual; or
  • confirm the existence of the entity.

Given the definition of a business relationship, we do not expect this requirement to be overly burdensome. If you currently conduct list screening, PEP screening could easily be added to that process.

Beneficial Ownership

The proposed amendments will required DPMSs to comply with existing beneficial ownership requirements that apply to other reporting entities.

This means when identifying an entity, a reporting entity needs to collect the following for all Directors and individuals who own or control, directly or indirectly, 25% or more of the organization:

  • Their full legal name;
  • Their full home address; and
  • Their role and/or ownership stake in the organization.

Given the obligation is to obtain, rather than verify, such information, we do not expect this requirement to be overly burdensome for the DPMS sector.

We’re Here To Help

If you would like assistance in updating your compliance program and processes, or have any questions related to the changes, please get in touch!

Regulations Amending the Regulations February 15, 2020- Redlined Versions

The following red-lined versions have been created to reflect the amendments to Canadian anti-money laundering (AML) regulations published in the Canada Gazette on February 15, 2020. You can also read our article “Amending the Amendments!” for a summary of the proposed changes by industry.

Redlined versions of all the Proceeds of Crime (Money Laundering) and Terrorist Financing Regulations are listed below for download.

These documents are not official versions of the regulations. Official versions can be found on the Government of Canada’s Justice Laws Website.

Regulations Amending the Regulations Amending Certain Regulations Made Under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act

Please click the link below for downloadable PDF file.
Amending_the_Regulations_Amending_Certain_Regulations_Made_Under_the_Proceeds_of_Crime_July_2019 – Redlined_Feb_2020

Proceeds of Crime (Money Laundering) and Terrorist Financing Regulations

Please click the links below for downloadable pdf files.
PCMLTF_July_2019_Redlined_Full_July_2019 – Redlined_Feb_2020

Proceeds of Crime (Money Laundering) and Terrorist Financing Suspicious Transaction Reporting Regulations

Please click the links below for downloadable pdf files.
PCMLTF_Suspicious_Transaction_Reporting_Regulations_July_2019 – Redlined_Feb_2020

Proceeds of Crime (Money Laundering) and Terrorist Financing Registration Regulations

Please click the link below for a downloadable PDF file.
PCMLTF_Registration_Regulations_July_2019 – Redlined_Feb_2020

Proceeds of Crime (Money Laundering) and Terrorist Financing Administrative Monetary Penalties Regulations

Please click the link below for a downloadable pdf file.
PCMLTF_Administrative_Monetary_Penalties_Regulations_July_2019 – Redlined_Feb_2020

Proceeds of Crime (Money Laundering) and Terrorist Financing Cross-Border Currency and Monetary Instruments Reporting Regulations

Please click the link below for a downloadable pdf file.
PCMLTF_Cross-Border_Currency_and_Monetary_Instruments_Reporting_Regulations_July_2019 – Redlined_Feb_2020

Need a Hand?

Whether you need to figure out if you’re a dealer in virtual currency, to put a compliance program in place, or to evaluate your existing compliance program, we can help. You can get in touch using our online form, by emailing info@outliercanada.com, or by calling us toll-free at 1-844-919-1623.

Real Estate Sector – Identifying Individuals

We often hear friends and clients in the real estate sector say they are frustrated that there are not many ways to identify a customer other than meeting them face-to-face. Real estate developers, brokers and sales representatives have an obligation to ascertain a customer’s identity which requires them to refer to specific information and/or documentation to verify a customer’s identity.  However, this does not mean that identification must take place face-to-face. Below is a summary of all the different methods outlined in FINTRAC Guidance that are currently available to identify customers that are individuals and what’s coming.[1]

This article should not be considered advice (legal or otherwise). Throughout this article we refer to a purchaser of real estate as a customer, but you may refer to them as clients depending on your internal procedures. Also, your internal procedures may dictate what methods are acceptable in identifying a customer. If you are unsure, consult with your Compliance Officer where there is any doubt on what is acceptable within your organization.

Face-to-Face Identification for Individuals

When meeting customers face-to-face you may ask for a piece of identification that is:

  • Issued by a provincial, territorial or federal government in Canada or an equivalent foreign government (a foreign Passport would be acceptable for example);
  • Valid, not expired (if there is not expiry date this must be stated in the customer identification record);
  • Bears a unique identifier number (such as a driver’s license number);
  • Bears the name of the individual being identified;
  • Is an original (not a copy, photo, scan, video call, etc.); and
  • Bears a photo of the individual being identified.

Information that must also be collected and recorded includes things such as the customer’s full name (no initials, short forms or abbreviations), their occupation, date of birth, etc. The needed information is included in various fields on industry customer identification forms that are used so it is crucial they are complete and accurate.

Single Process Method

Under the single process method, a customer’s identify can be confirmed by completing  a credit header match on their Canadian credit file, provided it has been in existence for at least three years and has at least two trade lines.  This means there is not a ‘hard hit’, impacting the customer’s credit score. This must be completed at the time of confirming a customer’s identity and cannot take place earlier or later.  To be acceptable, the credit file details must match the exact name, date of birth and address provided by the customer. When using this method to confirm a customer’s identity a record of the following information must be retained:

  • The customer’s name;
  • The name of the Canadian credit bureau holding the credit file;
  • The reference number of the credit file; and
  • The date the credit file was consulted.

Dual Process Method

Where the single process method provides information that does not match what the customer has provided and/or the credit file does not meet the requisite requirements, the dual process method can be used to identify that customer.  This involves referring to information from reliable and independent sources and must be original, valid and the most recent.  In order to qualify as reliable, the sources should be well-known and reputable. Reliable and independent sources can be the federal, provincial, territorial and municipal levels of government, crown corporations, financial entities or utility providers. It is important to note that independent means neither of the sources can be the same, nor can they be you or your business.

Documentation being used must be in its original form.  This makes electronic documents the preference because the customer can send the originals via email, while retaining a copy for themselves. You cannot accept documents that have been photocopied, scanned or faxed.

Under the dual process method, you can refer to any two of the following options:

  • Documents or information from a reliable source that contain the customer’s name and date of birth;
  • Documents or information from a reliable source that contain the customer’s name and address; or
  • Documents or information that contain the customer’s name and confirms that they have a deposit, credit card or other loan account with a financial entity.

The table below provides some examples of the sources and documents that can be referred to when confirming a customer’s identification.  In order to meet the standards of the dual process method, two documents must be obtained but each document cannot be in the same column.

 

Documents or information to verify name and address

 

 

Column A

 Documents or information to verify name and date of birth

 

 

Column B

 Documents or information to verify name and confirm a financial account

 

Column C

 
Issued by a Canadian government body:

Any card or statement issued by a Canadian government body (federal, provincial, territorial or municipal):

·      Canada Pension Plan (CPP) statement;

·      Property tax assessment issued by a municipality; or

·      Provincially-issued vehicle registration.

·      Federal, provincial, territorial, and municipal levels.

CRA documents:

·      Notice of assessment;

·      Requirement to pay notice;

·      Installment reminder / receipt;

·      GST refund letter; or

·      Benefits statement.

 Issued by a Canadian government body:

Any card or statement issued by a Canadian government body (federal, provincial, territorial or municipal):

·      Canada Pension Plan (CPP) statement of contributions;

 

 

Issued by other Canadian sources:

·      Referring to a customer/customer’s Canadian credit file that has been in existence for at least 6 months; or

Insurance documents (home, auto, life);

 Confirm that your customer/customer has a deposit account, credit card or loan account by means of:

·      Credit card statement;

·      Bank statement;

·      Loan account statement (for example: mortgage);

·      Cheque that has been processed by a financial institution;

·      Telephone call, email or letter from the financial entity holding the deposit account, credit card or loan account; or

·      Identification product from a Canadian credit bureau (containing two trade lines in existence for at least 6 months);
Issued by other Canadian sources:

·      Referring to the customer/customer ‘s Canadian credit file that has been in existence for at least 6 months;

·      Utility bill (for example, electricity, water, telecommunications);

·      T4 statement;

·      Record of Employment;

·      Investment account statements (for example, RRSP, GIC); or

·      Identification product from a Canadian credit bureau (containing two trade lines in existence for at least 6 months).

 

Where the dual process method is used to confirm the identity of a customer, a record of certain information must be maintained. Specifically:

  • The customer’s name;
  • The name of the two different sources that were used to identify the customer;
  • The type of information (for example, utility statement, bank statement, etc.) that was referred to;
  • The account number associated with the information for each source (if there is account number, you must record a reference number); and
  • The date the information was verified.

Third Parties (Agent or Mandatary)

If you are unable to use any of the methods above (say in the case of a foreign buyer that you cannot meet with face-to-face), you can ask someone in their area to identify them on your behalf.  There must be a written agreement or arrangement in place before using this method and procedures must be in place on how the third party will identify a buyer.

 

What’s To Come?

On June 9th, 2018, draft amendments to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (PCMLTFA) and its enacted regulations (there are five separate regulations that we’re going to collectively call regulations here for simplicity’s sake) were published. The draft amendments include some positive changes in respect to requirements related to identity verification.

With regards to the identification document used to identify a customer, the draft amendments replace the word “original” with “authentic” and state that a document used for verification of identity must be “authentic, valid and current.” This may[2] allow for scanned copies of documentation and/or for software that can authenticate identification documents to be used for the dual process method.

Under the draft amendments, regarding the single process method, information in a credit report must be derived from more than one source (this means there must be more than one trade line).

Under the draft amendments, real estate developers, brokers and sales representatives would be allowed to rely on identity verification undertaken by other regulated entities. This method requires a written agreement and a requirement to deliver the identity documentation within three days.

 

We’re Here To Help

If you have questions regarding the identification requirements in place currently or the requirements that are in draft form please contact us.

 

[1] Note that methods used to identify customers that are organizations are different from the ones discussed in this article.

[2] There is no certainty in this regard until a final version is published and FINTRAC has provided their guidance on the matter.

AML Changes For The Real Estate Sector

Here We Go Again! Canada’s Proposed AML Changes for Real Estate Developers, Brokers and Sales Representatives

 

On June 9th, 2018, draft amendments to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (PCMLTFA) and its enacted regulations (there are five separate regulations that we’re going to collectively call regulations here for simplicity’s sake). This article is intended to give a high-level summary of the proposed amendments as they relate to the real estate industry.

This article should not be considered advice (legal, tax or otherwise). That said, any of the content shared here may be used and shared freely – you don’t need our permission. While we’d love for content that we’ve written to be attributed to us, we believe that it’s more important to get reliable information into the hands of community members (meaning that if you punk content that we wrote, we may think you’re a jerk but we’re not sending an army of lawyers).

Finally, we want to encourage the community to discuss the proposed changes and submit meaningful feedback for policy makers. The comment period for this draft is 90 days. After this, the Department of Finance takes the feedback to the bat cave and drafts a final version of the amendments. From the time that the final version is published, the draft indicates that there will be 12 months of transition to comply with the new requirements.

What does this mean for my business?

While there are quite a number of proposed changes (the draft is about 200 pages in length), some are likely to have more of an impact on for real estate developers, brokers and sales representatives than others. We’ve summarized the changes that we expect to have the most impact below. Remember these are just proposed changes so there is no need to update your compliance material just yet.

What’s New?

Virtual Currency:

While there are not many proposed amendments that will introduce new requirements for real estate developers, brokers and sales representatives the draft regulations introduce reporting requirements for the receipt of CAD 10,000 or more of virtual currency. These basically are the same as large cash reporting obligations and will require reporting entities to maintain a large virtual currency transaction record.

The requirements for reporting and recordkeeping for virtual currency will be very similar to cash reporting requirements.

What existing requirements are changing?

24-hour rule:

The draft regulations clarify that multiple transactions performed by or on behalf of the same customer or entity within a 24-hour period are considered a single transaction for reporting purposes when they total CAD 10,000 or more. Only one report would need to be submitted to capture all transactions that aggregate to CAD 10,000 or more. For real estate developers, brokers and sales representatives this would apply to recipient of cash deposits. Specifically, this will apply to large cash transactions or CAD 10,000 or more. 

Identification:

The draft regulations replace the word “original” with “authentic” and states that a document used for verification of identity must be “authentic, valid and current. This would allow for scanned copies of documentation and/or for software that can authenticate identification documents to be used for the dual process method for real estate developers, brokers and sales representatives that identify clients in a non-face-to-face manner. Another change, related to measures for verifying identity, is that the word “verify” has been replaced with “confirm” and “ascertain” has been replaced with confirm. What this will mean exactly is still unclear (FINTRAC will need to provide more guidance once the final amendments are released). We are hopeful that it will allow for easier customer identification – especially for customers outside of Canada.

Records:

There have been some changes to the details that must be recorded in records that real estate broker or sales representative must maintain. In particular, the draft regulations add the requirement that information records must contain details of every person or entity for which they act as an agent or mandatary in respect of the purchase or sale of real property. Under the existing regulations information related to the person or entity purchasing real estate only.

Risk Assessment:

Under current regulations, reporting entities are required to assess the risks associated with its business and develop a risk assessment specific to your situation. For real estate developers, brokers and sales representatives a risk assessment must address the following four areas:

  • Products, services, and delivery channels (to better reflect the reality of the real estate sector, this workbook will now only refer to services and delivery channels);
  • Geography;
  • Clients and business relationships; and
  • Other relevant factors

A proposed amendment would require all reporting entities to assess the risk related the use of new technologies, before they are implemented.  This has been a best practice since the requirement to conduct a risk assessment came into force, but this change would make this a formal requirement.

Suspicious Transaction Reporting:

Under current regulations if a reporting entity has reasonable grounds to suspect that a transaction or attempted transaction is related to money laundering or terrorist financing, a report must be submitted to FINTRAC within 30 days of the date that a fact was discovered that caused the suspicion. The revised regulations add to this requirement by stating:

“The person or entity shall send the report to the Centre within three days after the day on which measures taken by them enable them to establish that there are reasonable grounds to suspect that the transaction or attempted transaction is related to the commission of a money laundering offence or a terrorist activity financing offence.

This would require reports to be submitted to FINTRAC within three days after the reporting entity conducts an analysis that established reasonable grounds for suspicion.

Schedules:

The draft regulations introduce changes to reporting schedules, requiring more detailed information to be filed with FINTRAC then previously was required. This is in addition to including information that is marked as optional, if a reporting entity has the information. As it relates real estate developers, brokers and sales representatives these changes will impact attempted suspicious and suspicious transaction reporting, terrorist property reporting and large cash reporting. Some of the additional proposed data fields are:

  • every reference number that is connected to the transaction,
  • every other known detail that identifies the receipt (of cash for large cash transactions),
  • type of device used by person who makes request online,
  • number that identifies device,
  • internet protocol address (IP address) used by device,
  • person’s user name, and
  • date and time of person’s online session in which request is made.

Such changes may be onerous for reporting entities, especially for transactions that are conducted online.

Training:

Under current regulation, if real estate developers, brokers and sales representatives use agents, mandataries or other persons to act on their behalf, they must develop and maintain a written, ongoing compliance training program for those agents, mandataries or other persons. The draft regulations introduces an additional requirement in which there must be a documented plan for the ongoing compliance training program and delivering of that the training.

What’s Next?

If you’ve read this far, congratulations and thank you!

We hope that you will contribute your thoughts and comments. You can do this by contacting the Department of Finance directly. Their representative on this file is:

Lynn Hemmings
Acting Director General
Financial Systems Division
Financial Sector Policy Branch
Department of Finance
90 Elgin Street
Ottawa, Ontario
K1A 0G5
Email: fin.fc-cf.fin@canada.ca

If you would like assistance drafting a submission, or have questions that you would like Outlier to answer, please get in touch!

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