On October 5, 2017, the Nova Scotia Legislature introduced Bill No. 27, the Intimate Images and Cyber-protection Act (the “Cyber-protection Act”, or the “Act”). The Act comes as Nova Scotia’s previous cyber-bullying legislation, the Cyber-safety Act (“CSA”), was struck down in 2015 by the Nova Scotia Supreme Court on constitutional challenge.
The Cyber-protection Act, like the CSA, is notable for making Nova Scotia the first Canadian province to formalize and adopt cyber-bullying legislation. Similar to its predecessor, the Act proposes to create civil remedies to deter, prevent, and respond to the harms of non-consensual sharing of intimate images and cyber-bullying. Continue Reading
The Transatlantic Policy Working Group (“TPWG”), an organization set up by Innovate Finance and some of its partners and which is dedicated to Fintech policy discussion between the United States and United Kingdom, recently published a report entitled The Future of RegTech for Regulators (the “TPWG Report”). RegTech refers to the use of technology to facilitate compliance with regulatory requirements via improved data analytics, reporting, and information governance (please see our previous blog posts on RegTech here and here). These technologies have the potential to help business increase accuracy of their reporting and compliance programs while concurrently reducing costs.
The TPWG Report highlights possible ways in which regulators may approach Fintech solutions for regulatory compliance in the future. Understanding the models behind the approaches adopted by regulators will be key to ensuring that Fintech entities understand the letter and spirit of future regulations.
The key conclusion of the TPWG Report is that regulators should keep an open mind to the different approaches being taken by their counterparts in other countries. There are different models which regulators can follow, which include the “Ecosystem Approach”, the “Digital Financial Infrastructure Approach” and the “Rule and Process Change Approach”. Critical consideration of these underlying models can be important in ensuring that regulation is consistent and strikes the appropriate balance between encouraging innovation and protecting the financial system from risk. Continue Reading
On September 6, 2017, the British Columbia Securities Commission (“BCSC”) announced the first registration of an investment fund manager in Canada dedicated solely to cryptocurrency investments. First Block Capital Inc. (“First Block Capital”), which will operate a bitcoin investment fund, was registered as an investment fund manager and exempt market dealer. The company is also registered in Ontario, with the BCSC being its principal regulator. Continue Reading
On September 12, 2017 the UK Financial Conduct Authority (“FCA”) released brief guidance (“FCA Guidance”) on initial coin offerings (“ICOs”). This follows earlier guidance from the Canadian Securities Administrators (the “CSA”) in August on ICOs, a summary of which can be read here:
The FCA Guidance defines an ICO as a digital method of raising funds from the public using a virtual currency (cryptocurrency). An ICO can also be known as a “token sale” or a “coin sale”. Continue Reading
In AstraZeneca v Apotex, 2017 FC 726, the Federal Court issued its damages decision concerning Apotex’s infringement of a patent pertaining to AstraZeneca’s LOSEC (omeprazole) drug. This decision offers insight in the factual hurdles a generic must overcome to establish an ex post facto non-infringing alternative (NIA), and confirms that s. 8 damages are not available during a period in which a generic would be infringing a patent, as there is no compensable loss. Continue Reading
The provisional application of CETA takes effect in Canada today, ushering in a new era for pharmaceutical patent litigation. As part of this implementation, amendments to the Patent Act, the Patent Rules and the PM(NOC) Regulations, as well as the new Certificates of Supplemental Protection (CSP) Regulations, came into force today. See our previous posts on the new PM(NOC) Regulations and CSP Regulations for key details about these new schemes.
Health Canada issued a Guidance Document relating to the CSP Regulations and a Notice in Respect of the PM(NOC) Regulations. The CSP Guidance Document provides information on the procedure for filing a CSP application, timing requirements, eligibility information, CSP scope, and other details about the new CSP framework. The PM(NOC) Notice outlines updates regarding Health Canada’s administration of the Regulations, including information about how to notify Health Canada of proceedings, new Form Vs, and updated verification requirements.
Links to the new statutes and regulations are below:
The Government of Canada has announced that the amended NOC regulations will come into force on September 21, 2017. These amendments will implement sweeping changes to pharmaceutical patent litigation in Canada pursuant to obligations imposed under CETA. The changes will apply to proceedings commenced in respect of NOAs served on or after September 21, 2017.
The final text of the amended NOC Regulations does not differ from the initial draft published on July 15, 2017, as summarized by our previous blog here. Continue Reading
On August 24, 2017, Staff of the Canadian Security Administrators (the “CSA”) released CSA Staff Notice 46-307 Cryptocurrency Offerings (the “CSA Notice”), published in all Canadian jurisdictions except Saskatchewan.
The CSA Notice addresses a number of considerations of relevance to Fintechs, investors and their advisors, including the potential applicability of Canadian securities laws to initial coin offerings (“ICOs”) and initial token offerings (“ITOs”), cryptocurrency exchanges and cryptocurrency investment funds. It follows a press release issued by the Ontario Securities Commission earlier this year confirming that Ontario securities laws may apply to any use of distributed ledger technologies (“DLTs”), such as blockchain, as part of financial products or service offerings. Our commentary on that press release is here.
The effect of the CSA Notice is to confirm the potential applicability of Canadian securities laws to cryptocurrencies and related trading and marketplace operations and to provide market participants with guidance on analyzing these requirements. Continue Reading
On August 9, 2017, the Government of Ontario released its report on financial services following the Red Tape Challenge. This report contains a number of recommendations and action items relating to Fintech:
- New flexible, innovative provincial financial services regulator – As previously announced, the Government of Ontario is proceeding with its plans to establish a new financial services regulator, the Financial Services Regulatory Authority of Ontario (“FSRA”), which is intended to be a “new, flexible and innovative financial services and pension regulator”, and which will replace existing provincial financial services regulators, including the Financial Services Commission of Ontario (“FSCO”). In the meantime, the report also states that FSCO has created a working group “to ensure that fintech-enabled start-ups and incumbents have a single point of contact for engaging with and accessing the regulator.”
- Regulatory sandbox – The report states that the Ontario Ministry of Finance will take into account the idea of a “regulatory sandbox” as it works to create the new FSRA and put forth this idea to the board of the FSRA for consideration. Many jurisdictions, including the UK and Singapore, have put in place regulatory sandboxes in the context of Fintech regulation, and the report refers specifically to “develop[ing] a pilot program to allow all fintech start-ups a regulatory grace period” as an action item to consider. The Ontario Securities Commission (“OSC”) has already put in place a similar approach by way of OSC LaunchPad.
- Harmonization of financial regulation – The report states that as part of the work establishing the new FSRA, it will keep in mind the feedback received requesting additional efforts in respect of the harmonization of provincial and federal financial services regulation, and also put forth this request to the board of the FSRA for consideration.
- Online resources for financial services regulation – The Ontario Ministry of Finance will work with the OSC and FSCO to review existing online resources with respect to financial services regulation to determine whether these can be improved.
- Simplification of financial services forms and regulations – FSCO has commenced a three year review process to determine whether it can simplify its forms, including mortgage and investor disclosure forms.
In addition, the report contains a number of other recommendations relating specifically to insurance, credit unions, mortgage brokerage and investment advisor requirements, which may impact particular Fintechs, depending on their business model.
For more information about our firm’s Fintech expertise, please see our Fintech group‘s page.
From August 9, 2017 to September 29, 2017, Innovation, Science and Economic Development Canada is holding a public consultation on proposed reforms to the Copyright Board of Canada.
Among its other regulatory functions, the Copyright Board of Canada establishes the amount of tariffs to be paid for copyrighted content in a variety of areas where a copyright collective is tasked with administering those rights. These areas include music streaming, the public performance of music, educational copying, and the retransmission of television signals.
The consultation comes after a lengthy history of stakeholder complaints concerning the decision-making processes of the Board, including lengthy delays in determining the quantum of tariffs and a lack of transparency and predictability in arriving at those tariff decisions. A 2016 Senate Study revealed that the Board took, on average, between 3.5 to 7 years to make a tariff decision, leading to reduced economic activity within Canada’s cultural industries. The government now recognizes that urgent reform is necessary to underpin innovation and to enable access to new and diverse streams of copyright revenue.
The government discussion paper referenced in the consultation process identifies 13 options for reform, broadly categorized into four categories:
- Better enable the Board to deal with matters expeditiously, such as streamlining the Board’s decision-making framework, implementing case management, and empowering the Board to award costs between parties.
- Reduce the number of matters that come before the Board each year, by expanding the existing option for some collective societies to establish individual licensing agreements with prospective users independently of the Board or lengthening the effective time periods of tariffs.
- Prevent the retroactivity of tariffs or limit the impact of retroactivity, by requiring longer lead times in tariff filing or allowing for copyrighted content use and royalty collection pending the approval of a tariff in all cases.
- Clarify the Board’s framework, mandate and decision-making processes, including codifying specific Board procedures, specifying a decision-making criteria for the Board to consider, and harmonizing different tariff-setting regimes.
Given the tremendous growth of Canadian media and technology industries, such reform should be welcome news for copyright holders and users alike. Stakeholder comments and suggestions are invited and should be sent to firstname.lastname@example.org prior to September 29, 2017.
Submissions need not be confined to the specific proposals noted in the discussion paper. The government is willing to consider any other potential solutions that will improve the efficiency and timeliness of the Board’s decision-making process.
Changes to the Board’s funding and structure are outside the scope of the present consultation, as are wider questions about collective management of copyright in general. However, a broader copyright review is anticipated to begin sometime in the fall of 2017.
Tkachuk, D., & Day, J. (2016, November). Copyright Board: A Rationale for Urgent Review. Standing Senate Committee on Banking, Trade and Commerce. Retrieved from https://sencanada.ca/content/sen/committee/421/BANC/Reports/FINALVERSIONCopyright_e.pdf