No Wild West: What FINTRAC and other regulators are saying during the COVID-19 pandemic

With daily announcements on the impact COVID-19 is having on all aspects of life, it can be easy to assume it’s the wild west when it comes to legal obligations for REALTORS® and that “anything goes.”

However, making such an assumption would be risky and could lead to REALTORS® incurring significant penalties under the law. A more conservative position would be for REALTORS® to assume their pre-COVID-19 obligations continue to apply unless they have been advised otherwise by legal counsel or the relevant regulator. This in turn raises challenging questions as to how to satisfy these obligations while protecting your health and safety (and that of your clients).

Fortunately, many regulators have issued guidance as to the impact of COVID-19 in their particular regulatory space. In the federal realm, different approaches have been taken. Some regulators, like the Competition Bureau, have focused on the need for vigilance against potential anti-competitive conduct related to COVID-19 by those who might take advantage of the situation, for example, by making false or misleading statements about a product’s ability to prevent, treat or cure the virus, or by illegally agreeing to fix prices for certain products or services. Others, like the Office of the Privacy Commissioner of Canada, have issued statements on the application of privacy law in health crises. Most helpfully for REALTORS®, some, like the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC), have provided detailed policy interpretations as to how REALTORS® can comply with specific regulatory obligation in the current pandemic.

Examining FINTRAC’s COVID-19 message more closely we see that FINTRAC has:

  • Given direction as to the types of reports that reporting entities (which includes REALTORS® and their brokerages) should be prioritizing—namely suspicious transaction reports (“STRs”).
  • Provided an alternative email address mechanism (emergencyreport-declarationurgente@fintrac-canafe.gc.ca) that reporting entities can use to submit STRs when they cannot do so in the usual manner. As a reminder, REALTORS® are normally required to submit STRs using FINTRAC’s f2R web reporting system.
  • Clarified that because provincial governments have extended the validity of driver’s licenses (and similar documents) that expired on or after March 1, 2020, reporting entities may use such documents for the purpose of client identification provided the document is authentic. In other words, driver’s licenses that appear on their face to have expired on or after March 1, 2020 may still be considered valid and current for FINTRAC ID purposes.
  • Provided direction as to what measures reporting entities should take where COVID-19 impairs their ability to comply with their anti-money laundering obligations and provided an explicit statement that “FINTRAC will also take these circumstances into consideration when assessing a reporting entity’s compliance with the obligations.”

FINTRAC’s COVID-19 message provides some comfort that FINTRAC is mindful of the impact the current crisis is having on REALTORS®. Moreover, as I recently blogged, a change in the law with respect to the dual process method of identification means it is now significantly easier for REALTORS® to ID their clients without ever having a face-to-face meeting. Taken together, this means that REALTORS® don’t need to choose between their health and satisfying their regulatory obligations.

In times like these, it can be easy to think the problems you face are unique to your business. If you ever catch yourself feeling that way, pause and remind yourself that you’re not alone. In many cases, others will have encountered the same problem before, and guidance may exist to point you in the right direction.

The article above is for information purposes and is not legal or financial advice or a substitute for legal counsel.

Simon Parham, Legal Counsel, is always on hand to provide helpful advice to CREA, Boards, and Associations on all aspects of federal legislation that can be reduced to an acronym, including: PIPEDA; FINTRAC; and the DNCL. In his spare time, Simon enjoys running, camping, discovering the world with his daughter, and planning his “big year.”


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