Two regimes
Two separate regulators examine different parts of a provider’s work: how it performs payment activities and safeguards users, and how it addresses financial crime obligations.
The Retail Payment Activities Act (RPAA) creates the framework for retail payments. The Bank of Canada oversees PSP compliance with that Act, taking into account payment service efficiency and end users’ interests.1
A business that remits or transmits funds for others over an electronic funds transfer network is a money services business. This includes a business that pays invoices or accepts payment for goods and services on behalf of others, and it must register with FINTRAC before operating in Canada.2
The regimes remain separate. An application to register with the Bank of Canada must state whether the applicant is registered with FINTRAC, so one application asks about the other without combining the two registrations.3
Read the Retail Payment Activities Act guide for the retail payment regime, or the FINTRAC and RPAA guide for how the two sets of obligations relate.
The guides
Who is a payment service provider
A payment service provider performs payment functions as a service or business activity. The definition covers an individual or an entity, and excludes payment activity incidental to another service or business activity.4
The payment functions cover the work involved in holding money and moving an electronic transfer:
- providing or maintaining an account held for end users in relation to electronic funds transfers
- holding funds for an end user until the user withdraws them or they are transferred to someone else
- initiating an electronic funds transfer at an end user’s request
- authorizing a transfer, or transmitting, receiving or facilitating an instruction for one
- providing clearing or settlement services.4
A retail payment activity is any of these payment functions performed for an electronic funds transfer in Canadian currency or another country’s currency.4 The definition describes the activity being performed and its connection to an electronic funds transfer.
The Act applies to a PSP with a place of business in Canada. It also applies to a provider without a Canadian place of business when that provider performs retail payment activities for an end user in Canada and directs those activities at individuals or entities in Canada.5
Several providers and activities fall outside the Act. The exclusions include banks, credit unions and caisses, insurers, and trust and loan companies. They also include payment functions performed using a system designated under the Payment Clearing and Settlement Act, transfers between affiliated entities where an affiliate is the provider and no other PSP performs payment functions, and payment activity incidental to another business.6
For a business reviewing a provider, the practical starting point is the service itself: whether the provider holds an account or funds, initiates or authorizes transfers, handles transfer instructions, or provides clearing or settlement.
What the Bank of Canada requires
The Bank of Canada’s requirements govern registration, operational risk, incident response, safeguarding, reporting and records for PSPs performing retail payment activities.
Before carrying out retail payment activities, a PSP is required to register with the Bank.7 This means registration must come first. The PSP registration guide explains that process.
A PSP is required to put a risk management and incident response framework in place and keep it operating, so it can find and reduce operational risks and deal with incidents. The framework requires a review no less often than annually and ahead of material changes. The PSP also requires a testing approach, and if it uses an internal or external auditor, it must obtain an independent assessment at intervals of no more than three years. That assessment must be done by a person with adequate skills who did not help set up, operate or maintain the framework.8
If an incident materially affects an end user, another PSP or a designated clearing house, the PSP must notify the affected party and the Bank without delay once it becomes aware. The notice sent to the Bank must explain what happened, the material effect and the response measures.9
A PSP that holds end-user funds until withdrawal or transfer has three permitted safeguarding arrangements. It can hold the funds in trust in a trust account used for no other purpose, hold them in a prescribed account or manner, or hold them in an account used for no other purpose with insurance or a guarantee at least equal to the amount in the account.10
The provider must also create, put into practice and keep up a written framework for safeguarding funds. It is intended to ensure end users can reliably access their funds without delay and, after a specified failure event affecting the provider, that end users receive the funds or proceeds from insurance or a guarantee as soon as feasible.11 The safeguarding guide sets out these requirements in detail.
A PSP must submit an annual report for a calendar year to the Bank by March 31 of the following year. It must also notify the Bank at least five business days before making a significant change in how it performs a retail payment activity or beginning a new retail payment activity.12
Its records must be sufficient to demonstrate compliance and must be retained for five years after the current compliance they demonstrate ceases. The PSP must take reasonable measures to prevent their loss, destruction or falsification, detect and correct inaccuracies, and prevent unauthorized access to or use of their information.13
Administrative monetary penalties can reach $1,000,000 for a serious violation and $10,000,000 for a very serious violation.14
What FINTRAC requires
FINTRAC’s requirements apply to money services businesses and concern registration, compliance controls, client identification, records and reports.
A business that moves funds between people or entities over an electronic funds transfer network is a money services business. This includes invoice payment services and services that handle payments for goods and services. FINTRAC registration is required before the business starts operating in Canada.2
A money services business must maintain a compliance program, verify client identity for the activities and transactions where verification is required, and carry out other customer due diligence. It must keep prescribed transaction and client-identification records and submit reports to FINTRAC, including suspicious transaction reports and large cash transaction reports.15
The FINTRAC and RPAA guide explains why a provider’s services can bring it within either or both regimes.
Questions to ask a provider
These four questions connect a provider’s answers to published records or a specific legal requirement.
Are you registered with the Bank of Canada? The Bank’s public registry lists the names and addresses of registered PSPs. The Bank also publishes a list of applicants refused registration and PSPs whose registrations were revoked, including the reasons for these decisions.16
Are you registered with FINTRAC? The searchable Money Services Business Registry is updated monthly. A registration entry shows that the business satisfied the legal requirements to register. It carries no FINTRAC endorsement or licence.17
How is my money held while you hold it? Ask which permitted arrangement applies: a dedicated trust account, a prescribed account or manner, or a dedicated account supported by insurance or a guarantee at least equal to the funds held.10
How would you tell me about an incident? An incident with a material impact on you requires notice to you and the Bank without delay. The notice to the Bank must describe the incident, its material impact and the response measures taken.9