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Quebec MSB Respondents

Since Quebec’s MSB Act came into force in 2012, there have been many questions about whether or not the law applied to entities that don’t have a physical presence in Quebec (the answer is yes, if you’re serving customers located in Quebec at the time of the transaction). Most recently, the Authorité des Marchés Financiers (AMF), Quebec’s provincial regulator, has announced that the law applies to digital currency ATMs and exchanges. One of the challenges for businesses that don’t have a physical presence in Quebec is designating a respondent within the province. While Outlier doesn’t have Quebec offices either, we’ve put together some resources to help you navigate the process.

Hefty Disclaimers

We’re not lawyers, and nothing in this article should be considered legal advice. While we’ve put together some resources that we hope will be helpful, you will need to decide on the right course of action for you and your business.

What Does A Respondent Do?

A respondent is a person or company that acts as your point of contact with the AMF. While this seems relatively simple on the surface, the respondent must pass relevant communications to you and pass information from you to the AMF, the requirements are actually more complex than this (see below for the full text from the MSB Act on respondents). A respondent must have premises in Quebec and be approved by the AMF. The AMF has taken the position that those involved in financial services (including respondents) must demonstrate “integrity and good moral character” (this is broadly defined) and the AMF can reject MSBs, agents and respondents that do not meet this criteria.

The MSB Act goes on to state that a respondent must be “able to properly exercise a respondent’s functions with the Authority.” This means that the respondent will need to understand how to communicate with the AMF (and while French language isn’t a requirement, it is definitely a benefit here). The respondent will also need significant access to information about your business and operations, both to assist in the application process and to communicate with the AMF.

Finally, there is some debate about the liability that the respondent bears in acting in this capacity for an MSB. We’ve reached out to the AMF for their position on respondent liability.  The regulator’s position is that a respondent bears little if any liability, provided that they are acting “in good faith.”  This means that the respondent is expected to have done some degree of due diligence regarding their MSB client, and that the respondent believes that the information that they are providing to the AMF is complete and accurate.

There is also a risk to MSBs. The respondent will act as your point of contact with the AMF. This means that the regulator will most often be communicating with your respondent, rather than with you directly.

What Should I Look For in a Respondent?

As the voice of your business with the AMF, you’ll want a respondent that has certain characteristics:

GOOD COMMUNICATION – Your respondent should be someone that the AMF can reach when they have information requests, and the respondent should be able to quickly pass these requests to you. If your respondent’s contact information changes, they’ll need to update this information with the AMF to avoid missing any information requests or other regulatory communication.

RELIABLE – Like most regulatory requests, when the AMF asks for information or clarification, there are generally strict timelines. Your respondent should be someone who understands this and will ensure that your responses are submitted on time.

INTEGRITY – Your respondent will need to pass a background check (this is required under the MSB Act) and deal with your confidential business information. It is vital that the respondent be someone that you can trust.

EXPERIENCE – The ideal respondent understands their role, your business and has experience dealing with the AMF. The respondent, in some cases, may also act as an advisor, helping you to devise the best strategy for your business.

PRICE TRANSPARENCY – The respondent is likely to be doing much more than passing messages between you and the AMF. You should have a clear understanding of the fees that you will pay and the work that you’ve authorized the respondent to complete on your behalf. Your agreement with your respondent should be spelled out in formal contracts.

What Do I Need to Do for the Respondent?

You should expect to provide the respondent with due diligence information. This will include information about your business and its beneficial owners and directors. This includes information that is required under the MSB Act as well as additional information that the respondent requires based on their own internal processes.

Jillian Friedman (a Quebec based lawyer), notes that MSBs should be prepared to provide at least the following information early on in discussions with respondents:

  • The name and ID of all those employees involved in the MSB activity;
  • A list containing the name, date of birth, if applicable, domiciliary address and telephone number of each of its mandataries and of each of the officers of its mandataries who are responsible for the money services offered on behalf of the money-services business;
  • A list of the financial institutions with which it deals;
  • The MSB’s business plan; and
  • The MSB’s financial statements for the last fiscal year.

If you are uncomfortable providing this type of information before you have a signed agreement in place, you can always ask the respondent to sign a confidentiality agreement.

Respondent Contacts

The contacts below are people that we know and have spoken to personally about the respondent services that they provide. While we can’t guarantee anything that another person or company does, they’ve got our vote of confidence.

Respondents are listed in alphabetical order by first name.

Charles Tibshirani, Principal, Tibshirani Lawyers

Phone: (514) 285-9285

Email: charles@tibshirani.ca

Website: www.tibshirani.ca

Relevant specializations and experience: Charles has extensive experience dealing with cross-border MSB issues, dealing with the AMF and litigation.

Marc Lemieux, Principal, Lemieux Legal Services

Phone: (514)-987-1117

Email: marc@marclemieux.com

Website: marclemieux.com

Relevant specializations and experience: Jillian is an expert in digital currency related law (a topic on which she is the co-author of a book to be released in 2015).  She also works with traditional payment companies.

Michael Garellek, Associate, Gowlings LLP

Phone:   514-392-9421

Email: Michael.Garellek@gowlings.com

Website: www.gowlings.com

Relevant specializations and experience: Michael’s experience includes working directly with the AMF, as well as, dealing with the AMF on behalf of his financial services clients.

Need A Hand

If you’re not sure if the MSB Act applies to you, or need assistance in finding a respondent, please contact us.

The MSB Act on Respondents (Full Text From the MSB Act)

5.  A licence application must be filed together with the fee determined by regulation and filed by a person acting as the business’s respondent for the purposes of this Act.

The respondent must

(0.1) be a director, officer or partner of the money-services business;

(1) be 18 years of age or over;

(2) not be under tutorship, curatorship or advisership;

(3) be domiciled in Québec or have a place of business or a place of work in Québec; and

(4) meet any other condition set by regulation.

The money-services business must give the respondent access, at the business’s head office and in all its establishments, to the information and documents needed to exercise the respondent’s functions.

The respondent for a money-services business that is not constituted under the laws of Québec and does not have its head office or an establishment in Québec need not be a director, officer or partner of the business but must be able to properly exercise a respondent’s functions with the Authority.

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