Do Canadian securities laws apply to cryptocurrencies?
Alberta securities laws can apply to the trading of a crypto-asset in a variety of circumstances.
Crypto-assets are sometimes referred to by names such as “utility token”, “payment token”, “virtual asset”, “digital currency” or “stablecoin”. The name given to the crypto-asset does not determine whether or not it is subject to Alberta securities laws. It is important to consider the definitions of “security” and “derivative” in Alberta securities laws, having regard to the characteristics of the crypto-asset itself, as well as the way it may be offered or traded. See the full definitions of those terms in the Securities Act (Alberta).
Generally, Alberta securities laws will be engaged in respect of a crypto-asset if the crypto-asset is a security or derivative itself. However, securities law may apply to a trading platform even if the crypto-asset is not itself a security or derivative if the way it is traded creates a security or derivative. Securities law will also apply if the crypto-asset is the asset underling an investment pool or underlying a derivative.
Considerations before investing in cryptocurrencies
Lack of regulation or regulatory compliance: Offerings of crypto-assets to investors in Canada will often need to comply with securities laws for the sale of securities, e.g., a prospectus or prospectus exemption Similarly, the platforms that allow trading of crypto-assets often need to comply with securities laws, such as the requirement to be registered as a dealer and regulated as a marketplace. However, offerings may have occurred that were not made in compliance with securities laws and platforms may be operating without complying with the requirements applicable to them. Further, in some cases, platforms may not be subject to securities law. See CSA Staff Notice 21-327.
These situations give rise to real investor protection concerns. Offerings that do not comply with securities laws will often not provide investors with appropriate disclosure or may provide information that is false or misleading. Offerings may be so highly risky that they are not suitable for most investors. Worse, in some cases the offerings may be fraudulent as, unfortunately, the anonymous nature of crypto-assets can attract parties engaged in illegal business.
Regulated dealers and marketplaces are subject to various requirements designed to protect investors, such as relating to:
- Background checks on the people who operate the trading platform.
- Minimum levels of proficiency and experience.
- Keeping accurate records of client assets.
- Keeping client assets in safe custody and separate from the platform’s own assets.
- Protection of personal information.
- Addressing conflicts of interest and taking advantage of clients.
- Minimum amounts of capital and insurance.
- Fair trading rules.
- Prevention of market manipulation.
- Ongoing regulatory oversight.
None of these protections may exist with an unregulated platform. As a result, the people running the platform may not have the necessary experience or financial resources and there may be no insurance or other protection to cover losses. Further, if the platform is located in a foreign jurisdiction, there may be significant limitations on commencing legal action or recovering assets.
There are many other risks associated with crypto-assets, including:
Volatility: Trading in many cryptocurrencies has been extremely volatile. Investors may lose all their investment.
The value of a cryptocurrency is often determined solely by the public’s interest in it and current levels of supply and demand. There is often no inherent value to it. Media coverage of a cryptocurrency can have a major impact on its value over a short period of time without any organization or mechanism mitigating volatility. The price of a cryptocurrency may be driven primarily or solely by speculative demand that may be unsustainable. The resulting volatility can result in dramatic fluctuations in the value of your investment. Further, publicly available reports have suggested that trading on some platforms is overstated and fake, creating unreliable pricing information and misrepresenting the level of interest. A collapse in demand for a cryptocurrency may result in you losing all or most of your investment.
Liquidity: It may not be easy or cost-effective to trade your cryptocurrency for another cryptocurrency or for money that is legal tender. There is limited liquidity in some cryptocurrencies and prices and bid-ask spreads (that is, the spread between the price sought by a seller and the price offered by a buyer) may vary widely across cryptocurrency trading platforms. Cryptocurrency trading platforms may limit or suspend trading, or there may be limitations or suspensions imposed on funding and withdrawals from accounts. These risks may limit your ability to liquidate your investment on a timely basis or without significant expense.
Loss through fraud, theft or hacking: Cryptocurrencies are represented digitally and as such are susceptible to loss through theft, hacking and the compromising or loss of digital wallets and keys. Further, there is a risk that software code behind the crypto asset may not actually function as it is represented and/or it may be subject to change. Since cryptocurrencies are typically sold online, their creation and sale may be by persons located in foreign jurisdictions making it difficult for law enforcement agencies to monitor or take action. Additionally, because trading in cryptocurrencies is largely anonymous, it can attract parties engaged in illegal businesses and with unscrupulous practices. These characteristics make cryptocurrencies attractive to those intending to perpetrate scams and fraud. These risks could result in the loss of your investment.
Starting a business involving cryptocurrencies
If you are looking to deal or advise in cryptocurrencies or start a cryptocurrency trading platform, please refer to to the ASCs section on Financial innovation in the capital markets.