Investment Canada Act · GlobalLawDB

Contents

1Short title#

This Act may be cited as the Investment Canada Act.

2Purpose of Act#

Recognizing that increased capital and technology benefits Canada, and recognizing the importance of protecting national security, the purposes of this Act are to provide for the review of significant investments in Canada by non-Canadians in a manner that encourages investment, economic growth and employment opportunities in Canada and to provide for the review of investments in Canada by non-Canadians that could be injurious to national security.^note

Definitions

3Definitions#

In this Act,

Agency [Repealed, 1995, c. 1, s. 45]

assets includes tangible and intangible property of any value; (actifs)

business includes any undertaking or enterprise capable of generating revenue and carried on in anticipation of profit; (entreprise)

Canada includes the exclusive economic zone of Canada and the continental shelf of Canada; (Canada)

Canadian means

(a)a Canadian citizen,

(b)a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act who has been ordinarily resident in Canada for not more than one year after the time at which he or she first became eligible to apply for Canadian citizenship,

(c)a Canadian government, whether federal, provincial or local, or an agency thereof, or

(d)an entity that is Canadian-controlled, as determined under subsection 26(1) or (2) and in respect of which there has been no determination made under any of subsections 26(2.1), (2.11) and (2.31) or declaration made under subsection 26(2.2) or (2.32); (Canadien)

Canadian business means a business carried on in Canada that has

(a)a place of business in Canada,

(b)an individual or individuals in Canada who are employed or self-employed in connection with the business, and

(c)assets in Canada used in carrying on the business; (entreprise canadienne)

corporation means a body corporate with or without share capital; (personne morale)

Director means the Director of Investments appointed under section 6; (directeur)

entity means a corporation, partnership, trust or joint venture; (unité)

joint venture means an association of two or more persons or entities, where the relationship among those associated persons or entities does not, under the laws in force in Canada, constitute a corporation, a partnership or a trust and where, in the case of an investment to which this Act applies, all the undivided ownership interests in the assets of the Canadian business or in the voting interests of the entity that is the subject of the investment are or will be owned by all the persons or entities that are so associated; (coentreprise)

Minister means such member of the Queen’s Privy Council for Canada as is designated by the Governor in Council as the Minister for the purposes of this Act; (ministre)

new Canadian business, in relation to a non-Canadian, means a business that is not already being carried on in Canada by the non-Canadian and that, at the time of its establishment,

(a)is unrelated to any other business being carried on in Canada by that non-Canadian, or

(b)is related to another business being carried on in Canada by that non-Canadian but falls within a prescribed specific type of business activity that, in the opinion of the Governor in Council, is related to Canada’s cultural heritage or national identity; (nouvelle entreprise canadienne)

non-Canadian means an individual, a government or an agency thereof or an entity that is not a Canadian; (non-Canadien)

own means beneficially own; (propriétaire)

person means an individual, a government or an agency thereof or a corporation; (personne)

prescribed means prescribed by the regulations made pursuant to this Act; (Version anglaise seulement)

state-owned enterprise means

(a)the government of a foreign state, whether federal, state or local, or an agency of such a government;

(b)an entity that is controlled or influenced, directly or indirectly, by a government or agency referred to in paragraph (a); or

(c)an individual who is acting under the direction of a government or agency referred to in paragraph (a) or who is acting under the influence, directly or indirectly, of such a government or agency; (entreprise d’État)

voting group means two or more persons who are associated with respect to the exercise of rights attached to voting interests in an entity by contract, business arrangement, personal relationship, common control in fact through the ownership of voting interests, or otherwise, in such a manner that they would ordinarily be expected to act together on a continuing basis with respect to the exercise of those rights; (groupement de votants)

voting interest, with respect to

(a)a corporation with share capital, means a voting share,

(b)a corporation without share capital, means an ownership interest in the assets thereof that entitles the owner to rights similar to those enjoyed by the owner of a voting share, and

(c)a partnership, trust or joint venture, means an ownership interest in the assets thereof that entitles the owner to receive a share of the profits and to share in the assets on dissolution; (intérêt avec droit de vote)

voting share means a share in the capital of a corporation to which is attached a voting right ordinarily exercisable at meetings of shareholders of the corporation and to which is ordinarily attached a right to receive a share of the profits, or to share in the assets of the corporation on dissolution, or both. (action avec droit de vote)

Part I · Organization and Mandate

Minister

4Role of Minister#

The Minister is responsible for the administration of this Act.^note

5Duties and powers of Minister#

(1)The Minister shall

(a) to (e)[Repealed, 1995, c. 1, s. 47] (repealed)

(f)ensure that the notification and review of investments are carried out in accordance with this Act; and

(g)perform all other duties required by this Act to be performed by the Minister.

(2)In exercising the Minister’s powers and performing his duties under this Act, the Minister

(a)shall, where appropriate, make use of the services and facilities of other departments, branches or agencies of the Government of Canada;

(b)may, with the approval of the Governor in Council, enter into agreements, for the purposes of this Act, with the government of any province or any agency thereof, or with any other entity or person, and may make disbursements up to an amount equal to the aggregate of the amounts to be contributed by all parties to the agreement, even before those amounts have been contributed; and

(c)may consult with, and organize conferences of, representatives of industry and labour, provincial and local authorities and other interested persons.

^note

Director of Investments

6Director of Investments#

The Minister may appoint an officer, to be known as the Director of Investments, to advise and assist the Minister in exercising the Minister’s powers and performing the Minister’s duties under this Act.^note

7 to 9 #

[Repealed, 1995, c. 1, s. 48] (repealed)

Part II · Exemptions

10Exempt transactions#

(1)This Act, other than Part IV.1, does not apply in respect of

(a)the acquisition of voting shares or other voting interests by any person in the ordinary course of that person’s business as a trader or dealer in securities;

(b)the acquisition of voting interests by any person in the ordinary course of a business carried on by that person that consists of providing, in Canada, venture capital on terms and conditions not inconsistent with such terms and conditions as may be fixed by the Minister;

(c)the acquisition of control of a Canadian business in connection with the realization of security granted for a loan or other financial assistance and not for any purpose related to the provisions of this Act, if the acquisition is subject to approval under the Bank Act, the Cooperative Credit Associations Act, the Insurance Companies Act or the Trust and Loan Companies Act;

(d)the acquisition of control of a Canadian business for the purpose of facilitating its financing and not for any purpose related to the provisions of this Act on the condition that the acquirer divest himself of control within two years after it is acquired or within such longer period as is approved by the Minister;

(e)the acquisition of control of a Canadian business by reason of an amalgamation, a merger, a consolidation or a corporate reorganization following which the ultimate direct or indirect control in fact of the Canadian business, through the ownership of voting interests, remains unchanged;

(f)the acquisition of control of a Canadian business carried on by an agent of Her Majesty in right of Canada or a province or by a Crown corporation within the meaning of the Financial Administration Act;

(g)the acquisition of control of a Canadian business carried on by a corporation the taxable income of which is exempt from tax under Part I of the Income Tax Act by virtue of paragraph 149(1)(d) of that Act;

(h)any transaction to which Part XII.01 of the Bank Act applies;

(i)the involuntary acquisition of control of a Canadian business on the devolution of an estate or by operation of law;

(j)the acquisition of control of a Canadian business by

(i)an insurance company incorporated in Canada that is a company or a provincial company to which the Insurance Companies Act applies, on the condition that the gross investment revenue of the company from the Canadian business is included in computing the income of the company under subsection 138(9) of the Income Tax Act,

(ii)a foreign entity that has been approved by order of the Superintendent of Financial Institutions under Part XIII of the Insurance Companies Act to insure in Canada risks, on the condition that the gross investment revenue of the company from the Canadian business is included in computing the income of the company under subsection 138(9) of the Income Tax Act and the voting interests of the entity carrying on the Canadian business, or the assets used in carrying on the Canadian business, are vested in trust under that Part, or

(iii)a corporation incorporated in Canada, all the issued voting shares of which, other than the qualifying voting shares of directors, are owned by an insurance company described in subparagraph (i), a foreign entity described in subparagraph (ii) or by a corporation controlled directly or indirectly through the ownership of voting shares by such an insurance company or foreign entity, on the condition that, in the case of a foreign entity described in subparagraph (ii), the voting interests of the entity carrying on the Canadian business, or the assets used in carrying on the Canadian business, are vested in trust under Part XIII of the Insurance Companies Act; and

(k)the acquisition of control of a Canadian business the revenue of which is generated from farming carried out on the real property acquired in the same transaction.

(1.1)Part IV does not apply in respect of the acquisition of control of a Canadian business in connection with the realization of security granted for a loan or other financial assistance and not for any purpose related to the provisions of this Act, if the acquisition is not subject to approval under the Bank Act, the Cooperative Credit Associations Act, the Insurance Companies Act or the Trust and Loan Companies Act.

(2)Part IV.1 does not apply in respect of

(a)the acquisition of control of a Canadian business in connection with the realization of security granted for a loan or other financial assistance and not for any purpose related to the provisions of this Act, if the acquisition is subject to approval under the Bank Act, the Cooperative Credit Associations Act, the Insurance Companies Act or the Trust and Loan Companies Act;

(b)the acquisition of control of a Canadian business by reason of an amalgamation, a merger, a consolidation or a corporate reorganization following which the ultimate direct or indirect control in fact of the Canadian business, through the ownership of voting interests, remains unchanged, if the acquisition is subject to approval under the Bank Act, the Cooperative Credit Associations Act, the Insurance Companies Act or the Trust and Loan Companies Act;

(c)the acquisition of control of a Canadian business carried on by an agent of Her Majesty in right of Canada or a province or by a Crown corporation within the meaning of the Financial Administration Act;

(d)any transaction to which Part XII.01 of the Bank Act applies; or

(e)the acquisition of control of a Canadian business by any of the following entities, if the acquisition is subject to approval under the Bank Act, the Cooperative Credit Associations Act, the Insurance Companies Act or the Trust and Loan Companies Act:

(iii)a corporation incorporated in Canada, all the issued voting shares of which, other than the qualifying voting shares of directors, are owned by an insurance company described in subparagraph (i), by a foreign entity described in subparagraph (ii) or by a corporation controlled directly or indirectly through the ownership of voting shares by such an insurance company or foreign entity, on the condition that, in the case of a foreign entity described in subparagraph (ii), the voting interests of the entity carrying on the Canadian business, or the assets used in carrying on the Canadian business, are vested in trust under Part XIII of the Insurance Companies Act.

(3)If any condition referred to in paragraph (1)(d) or (j) or (2)(e) is not complied with, the exemption under that paragraph does not apply and the transaction referred to in that paragraph is subject to this Act as if it had never been exempt.

^note

Part III · Notification

11Investments subject to notification#

The following investments by non-Canadians are subject to notification under this Part:

(a)an investment to establish a new Canadian business; and

(b)an investment to acquire control of a Canadian business in any manner described in subsection 28(1), unless the investment is reviewable pursuant to section 14.

12Notice of investment#

Where an investment is subject to notification under this Part, the non-Canadian making the investment shall, at any time prior to the implementation of the investment or within thirty days thereafter, in the manner prescribed, give notice of the investment to the Director providing such information as is prescribed.^note

13Receipt#

(1)Where a notice given under section 12 provides all the required information or reasons for the inability to provide any part of the required information, or where the notice is completed pursuant to subsection (2), the Director shall forthwith send a receipt to the non-Canadian that gave the notice

(a)certifying the date on which

(i)the complete notice given under section 12 was received by the Director, or

(ii)the information required to complete the notice was received by the Director pursuant to subsection (2); and

(b)advising the non-Canadian that

(i)the investment is not reviewable under Part IV, or

(ii)unless the Director sends the non-Canadian a notice for review under section 15 within 45 days after the certified date referred to in paragraph (a) or within the prescribed period, the investment is not reviewable under Part IV.

(2)Where a notice given under section 12 is incomplete, the Director shall forthwith send a notice to the non-Canadian that gave the notice under that section, specifying the information required to complete the notice under section 12 and requesting that the information be provided to the Director in order to complete that notice.

(3)An investment in respect of which a receipt is sent under subsection (1) is not reviewable under Part IV if

(a)the information provided by the non-Canadian and relied on by the Director in sending the receipt is accurate; and

(b)in a case where the receipt contains the advice referred to in subparagraph (1)(b)(ii), no notice for review is sent to the non-Canadian pursuant to section 15 within 45 days after the certified date referred to in paragraph (1)(a) or within the prescribed period.

^note

Part IV · Review

14Reviewable investments#

(1)The following investments by non-Canadians are reviewable under this Part:

(a)an investment to acquire control of a Canadian business in any manner described in paragraph 28(1)(a), (b) or (c), where the limits set out in subsection (3) apply;

(b)an investment to acquire control of a Canadian business in the manner described in subparagraph 28(1)(d)(i), where the limits set out in subsection (3) apply;

(c)an investment to acquire control of a Canadian business in the manner described in subparagraph 28(1)(d)(ii), where the circumstances described in subsection (2) and the limits set out in subsection (3) apply; and

(d)an investment to acquire control of a Canadian business in the manner described in subparagraph 28(1)(d)(ii), where the circumstances described in subsection (2) do not apply and the limits set out in subsection (4) apply.

(2)The circumstances referred to in paragraphs (1)(c) and (d) are that the value, calculated in the manner prescribed, of the assets of the entity carrying on the Canadian business, and of all other entities in Canada, the control of which is acquired, directly or indirectly, amounts to more than fifty per cent of the value, calculated in the manner prescribed, of the assets of all entities the control of which is acquired, directly or indirectly, in the transaction of which the acquisition of control of the Canadian business forms a part.

(3)An investment described in paragraph (1)(a), (b) or (c) is reviewable under this Part where the value, calculated in the manner prescribed, of

(a)the assets acquired, in the case where control of a Canadian business is acquired in the manner described in paragraph 28(1)(c), or

(b)the assets of the entity carrying on the Canadian business, and of all other entities in Canada, the control of which is acquired, directly or indirectly, in the case where control of a Canadian business is acquired in the manner described in paragraph 28(1)(a), (b) or (d),

is five million dollars or more.

(4)An investment described in paragraph (1)(d) is reviewable under this Part where the value, calculated in the manner prescribed, of the assets of the entity carrying on the Canadian business, and of all other entities in Canada, the control of which is acquired, directly or indirectly, is fifty million dollars or more.

14.01 and 14.02 #

[Repealed, 1994, c. 47, s. 132] (repealed)

14.03 #

[Repealed, 1994, c. 47, s. 133] (repealed)

14.1Limits for WTO investors#

(1)Despite the limits set out in subsection 14(3), but subject to subsection (1.1), an investment described in paragraph 14(1)(a) or (b) by a WTO investor or — if the Canadian business that is the subject of the investment is, immediately prior to the implementation of the investment, controlled by a WTO investor — by a non-Canadian, other than a WTO investor, is reviewable under section 14 only if the enterprise value, calculated in the manner prescribed, of the assets described in paragraph 14(3)(a) or (b), as the case may be, is equal to or greater than,

(a) to (c)[Repealed, 2017, c. 20, s. 192] (repealed)

(d)for an investment implemented at any time in the period that begins on the day on which this paragraph comes into force and that ends on December 31 of the following year, $1,000,000,000; and

(e)for an investment implemented at any time in the year that begins after the period referred to in paragraph (d), or in any subsequent year, the amount determined under subsection (2).

(1.1)Despite the limits set out in subsection 14(3), an investment described in paragraph 14(1)(a) or (b) by a WTO investor that is a state-owned enterprise or — if the Canadian business that is the subject of the investment is, immediately prior to the implementation of the investment, controlled by a WTO investor — by a state-owned enterprise, other than a WTO investor, is reviewable under section 14 only if the value calculated in the manner prescribed, of the assets described in paragraph 14(3)(a) or (b), as the case may be, is equal to or greater than the applicable amount determined under subsection (2).

(2)The amount for any year for the purposes of paragraph (1)(e) and subsection (1.1) shall be determined by the Minister in January of that year by rounding off to the nearest million dollars the amount arrived at by using the following formula:

(3)As soon as possible after determining the amount for any particular year, the Minister shall publish the amount in the Canada Gazette.

(4)Despite paragraphs 14(1)(c) and (d), an investment described in either paragraph that is implemented after this subsection comes into force is not reviewable under section 14 if it is made by

(a)a WTO investor; or

(b)a non-Canadian, other than a WTO investor, if the Canadian business that is the subject of the investment is, immediately prior to the implementation of the investment, controlled by a WTO investor.

(5)This section does not apply in respect of an investment to acquire control of a Canadian business that is a cultural business.

(6)In this section and section 14.2,

controlled by a WTO investor, with respect to a Canadian business, means, notwithstanding subsection 28(2),

(a)the ultimate direct or indirect control in fact of the Canadian business by a WTO investor through the ownership of voting interests, or

(b)the ownership by a WTO investor of all or substantially all of the assets used in carrying on the Canadian business; (sous le contrôle d’un investisseur OMC)

cultural business means a Canadian business that carries on any of the following activities, namely,

(a)the publication, distribution or sale of books, magazines, periodicals or newspapers in print or machine readable form, other than the sole activity of printing or typesetting of books, magazines, periodicals or newspapers,

(b)the production, distribution, sale or exhibition of film or video recordings,

(c)the production, distribution, sale or exhibition of audio or video music recordings,

(d)the publication, distribution or sale of music in print or machine readable form, or

(e)radio communication in which the transmissions are intended for direct reception by the general public, any radio, television and cable television broadcasting undertakings and any satellite programming and broadcast network services; (entreprise culturelle)

financial institution [Repealed, 2009, c. 2, s. 448]

financial service [Repealed, 2009, c. 2, s. 448]

WTO Agreement has the meaning given to the word “Agreement” by subsection 2(1) of the World Trade Organization Agreement Implementation Act; (Accord sur l’OMC)

WTO investor means

(a)an individual, other than a Canadian, who is a national of a WTO Member or who has the right of permanent residence in relation to that WTO Member,

(b)a government of a WTO Member, whether federal, state or local, or an agency thereof,

(c)an entity that is not a Canadian-controlled entity, as determined pursuant to subsection 26(1) or (2), and that is a WTO investor-controlled entity, as determined in accordance with subsection (7),

(d)a corporation or limited partnership

(i)that is not a Canadian-controlled entity, as determined pursuant to subsection 26(1),

(ii)that is not a WTO investor within the meaning of paragraph (c),

(iii)of which less than a majority of its voting interests are owned by WTO investors,

(iv)that is not controlled in fact through the ownership of its voting interests, and

(v)of which at least two-thirds of the members of its board of directors, or of which at least two-thirds of its general partners, as the case may be, are any combination of Canadians and WTO investors,

(e)a trust

(i)that is not a Canadian-controlled entity, as determined pursuant to subsection 26(1) or (2),

(ii)that is not a WTO investor within the meaning of paragraph (c),

(iii)that is not controlled in fact through the ownership of its voting interests, and

(iv)of which at least two-thirds of its trustees are any combination of Canadians and WTO investors, or

(f)any other form of business organization specified by the regulations that is controlled by a WTO investor; (investisseur OMC)

WTO Member means a Member of the World Trade Organization established by Article I of the WTO Agreement. (membre de l’OMC)

(7)For the purposes only of determining whether an entity is a “WTO investor-controlled entity” under paragraph (c) of the definition WTO investor in subsection (6),

(a)subsections 26(1) and (2) and section 27 apply and, for that purpose,

(i)every reference in those provisions to “Canadian” or “Canadians” shall be read and construed as a reference to “WTO investor” or “WTO investors”, respectively,

(ii)every reference in those provisions to “non-Canadian” or “non-Canadians” shall be read and construed as a reference to “non-Canadian, other than a WTO investor,” or “non-Canadians, other than WTO investors,” respectively, except for the reference to “non-Canadians” in subparagraph 27(d)(ii), which shall be read and construed as a reference to “not WTO investors”,

(iii)every reference in those provisions to “Canadian-controlled” shall be read and construed as a reference to “WTO investor-controlled”, and

(iv)the reference in subparagraph 27(d)(i) to “Canada” shall be read and construed as a reference to “a WTO Member”; and

(b)where two persons, one being a Canadian and the other being a WTO investor, own equally all of the voting shares of a corporation, the corporation is deemed to be WTO investor-controlled.

^note

14.11Limits for trade agreement investors — paragraph 14(1)(a) or (b)#

(1)Despite the limits set out in subsections 14(3) and 14.1(1), an investment described in paragraph 14(1)(a) or (b) by a trade agreement investor, other than a state-owned enterprise, or — if the Canadian business that is the subject of the investment is, immediately prior to the implementation of the investment, controlled by a trade agreement investor — by a non-Canadian other than a trade agreement investor and other than a state-owned enterprise, is reviewable under section 14 only if the enterprise value, calculated in the prescribed manner, of the assets described in paragraph 14(3)(a) or (b), as the case may be, is equal to or greater than

(a)for an investment implemented at any time in the period that begins on the day on which this paragraph comes into force and that ends on December 31 of the following calendar year, $1,500,000,000, and

(b)for an investment implemented in any subsequent calendar year, the amount determined in respect of that calendar year under subsection (3).

(2)Despite the limits set out in subsections 14(3) and (4), an investment described in paragraph 14(1)(c) or (d) by an investor described in any of the following paragraphs is reviewable under section 14 only if the enterprise value, calculated in the prescribed manner, of the assets described in paragraph 14(3)(b) or subsection 14(4), as the case may be, is equal to or greater than the applicable amount referred to under paragaph (1)(a) or (b):

(a)a trade agreement investor that is neither a WTO investor as defined in subsection 14.1(6) nor a state-owned enterprise; or

(b)a non-Canadian that is not a trade agreement investor, a WTO investor as defined in subsection 14.1(6) or a state-owned enterprise, if the Canadian business that is the subject of the investment is, immediately prior to the implementation of the investment, controlled by a trade agreement investor.

(3)The amount for any year for the purposes of paragraph (1)(b) shall be determined by the Minister in January of that year by rounding off to the nearest million dollars the amount arrived at by using the following formula:

(4)As soon as possible after determining the amount for any particular year, the Minister shall publish the amount in the Canada Gazette.

(5)This section does not apply in respect of an investment to acquire control of a Canadian business that is a cultural business, as defined in subsection 14.1(6).

(6)The following definitions apply in this section.

controlled by a trade agreement investor, with respect to a Canadian business, means, despite subsection 28(2),

(a)the ultimate direct or indirect control in fact of the Canadian business by a trade agreement investor through the ownership of voting interests; or

(b)the ownership by a trade agreement investor of all or substantially all of the assets used in carrying on the Canadian business. (sous le contrôle d’un investisseur (traité commercial))

trade agreement country means a country other than Canada that is a party either to an Agreement described in subparagraph (a)(i) or (i.1) of the definition trade agreement investor in this subsection or to a trade agreement listed in column 1 of the schedule. (pays (traité commercial))

trade agreement investor means

(a)an individual, other than a Canadian, who is

(i)a natural person within the meaning of Article 8.1 of the Agreement as defined in section 2 of the Canada-European Union Comprehensive Economic and Trade Agreement Implementation Act,

(i.1)a natural person within the meaning of Article 8.1 of CETA, as defined in section 2 of the Canada–United Kingdom Trade Continuity Agreement Implementation Act, as incorporated by reference in CUKTCA, or

(ii)a national within the meaning of any provision set out in column 2 of the schedule corresponding to a trade agreement set out in column 1;

(b)the government of a trade agreement country, whether federal, state or local, or an agency of such a government;

(c)an entity that is not a Canadian-controlled entity, as determined under subsection 26(1) or (2), and that is a trade agreement investor-controlled entity, as determined in accordance with subsection (7);

(d)a corporation or limited partnership that meets the following criteria:

(i)it is not a Canadian-controlled entity, as determined under subsection 26(1),

(ii)it is not an entity described in paragraph (c),

(iii)less than a majority of its voting interests are owned by trade agreement investors,

(iv)it is not controlled in fact through the ownership of its voting interests, and

(v)at least two-thirds of the members of its board of directors, or at least two-thirds of its general partners, as the case may be, are any combination of Canadians and trade agreement investors;

(e)a trust that meets the following criteria:

(i)it is not a Canadian-controlled entity, as determined under subsection 26(1) or (2),

(ii)it is not an entity described in paragraph (c),

(iii)it is not controlled in fact through the ownership of its voting interests, and

(iv)at least two-thirds of its trustees are any combination of Canadians and trade agreement investors; or

(f)any other form of business organization specified by the regulations that is controlled by a trade agreement investor. (investisseur (traité commercial))

(7)For the purpose only of determining whether an entity is a trade agreement investor-controlled entity under paragraph (c) of the definition trade agreement investor in subsection (6),

(a)subsections 26(1) and (2) and section 27 apply and, for that purpose,

(i)every reference in those provisions to “Canadian” or “Canadians” shall be read and construed as a reference to “trade agreement investor” or “trade agreement investors”, respectively,

(ii)every reference in those provisions to “non-Canadian” or “non-Canadians” shall be read and construed as a reference to “non-Canadian other than a trade agreement investor,” or “non-Canadians, other than trade agreement investors,” respectively, except for the reference to “non-Canadians” in subparagraph 27(d)(ii), which shall be read and construed as a reference to “not trade agreement investors”,

(iii)every reference in those provisions to “Canadian-controlled” shall be read and construed as a reference to “trade agreement investor-controlled”, and

(iv)the reference in subparagraph 27(d)(i) to “Canada” shall be read and construed as a reference to “a trade agreement country”; and

(b)if two persons, one being a Canadian and the other being a trade agreement investor, own equally all of the voting shares of a corporation, the corporation is deemed to be trade agreement investor-controlled.

^note

14.2Regulations#

The Governor in Council may make any regulations that the Governor in Council considers necessary for carrying out the purposes and provisions of sections 14.1 and 14.11.^note

14.3Order#

The Governor in Council may, by order, amend the schedule by adding, deleting or replacing the name of a trade agreement in column 1 or a corresponding provision setting out the meaning of national in column 2.^note

15Other reviewable investments#

An investment subject to notification under Part III that would not otherwise be reviewable is reviewable under this Part if

(a)it falls within a prescribed specific type of business activity that, in the opinion of the Governor in Council, is related to Canada’s cultural heritage or national identity; and

(b)within 45 days after the certified date referred to in paragraph 13(1)(a)

(i)the Governor in Council, where the Governor in Council considers it in the public interest on the recommendation of the Minister, issues an order for the review of the investment, and

(ii)the Director sends the non-Canadian making the investment a notice for review.

^note

16Prohibition#

(1)A non-Canadian shall not implement an investment reviewable under this Part unless the investment has been reviewed under this Part and the Minister is satisfied or is deemed to be satisfied that the investment is likely to be of net benefit to Canada.

(2)Subsection (1) does not apply

(a)where the Minister has sent a notice to a non-Canadian making an investment to the effect that the Minister is satisfied that a delay in implementing the investment would result in undue hardship to the non-Canadian or would jeopardize the operations of the Canadian business that is the subject of the investment;

(b)to an investment made through an acquisition referred to in subparagraph 28(1)(d)(ii); or

(c)to an investment reviewable pursuant to section 15.

(3)If a non-Canadian makes a written request to the Minister for a notice referred to in paragraph (2)(a), the Minister shall, within 30 days after receiving all the information required for the Minister to decide whether the conditions described in that paragraph exist, advise the non-Canadian whether he or she will issue the notice or not.

^note

17Application#

(1)Where an investment is reviewable under this Part, the non-Canadian making the investment shall, in the manner prescribed, file an application with the Director containing such information as is prescribed.

(2)The application required by subsection (1) shall be filed

(a)subject to paragraph (b), in the case of an investment reviewable pursuant to section 14, at any time prior to the implementation of the investment;

(b)in the case of an investment made through an acquisition referred to in subparagraph 28(1)(d)(ii) or an investment with respect to which a notice referred to in paragraph 16(2)(a) has been sent, at any time prior to the implementation of the investment or within thirty days thereafter; or

(c)in the case of an investment reviewable pursuant to section 15, forthwith on receipt of a notice for review referred to in subparagraph 15(b)(ii).

(3)The non-Canadian making the investment shall, within the time specified by the Director, provide any other information that the Director considers necessary.

^note

18Receipt#

(1)Where an application filed under section 17 contains all the required information or reasons for the inability to provide any part of the information, or where the application is completed pursuant to subsection (2) or is deemed to be complete pursuant to subsection (3), the Director shall forthwith send a receipt to the applicant, certifying the date on which

(a)the complete application filed under section 17 was received by the Director;

(b)the information required to complete the application was received by the Director pursuant to subsection (2); or

(c)the application was deemed to be complete pursuant to subsection (3).

(2)Where an application filed under section 17 is incomplete, the Director shall send a notice to the applicant specifying the information required to complete the application and requesting that that information be provided to the Director in order to complete the application.

(3)Where the Director does not, within fifteen days after an application under section 17 has been received by the Director, send a receipt under subsection (1) or a notice under subsection (2), the application is deemed to be complete as of the date the application was received by the Director.

^note

19Matters to be referred to Minister#

(1)The Director shall refer to the Minister, for the purposes of section 21, any of the following material received by the Director in the course of the review of an investment under this Part:

(a)the information contained in the application filed under section 17 and any other information submitted by the applicant;

(b)any information submitted to the Director by the person or entity from whom or which control of the Canadian business is being or has been acquired;

(c)any written undertakings to Her Majesty in right of Canada given by the applicant; and

(d)any representations submitted to the Director by a province that is likely to be significantly affected by the investment.

(2)Her Majesty in right of Canada may accept any security for payment in respect of any penalty that may be imposed under paragraph 40(2)(d).

^note

20Factors#

For the purposes of section 21, the factors to be taken into account, where relevant, are

(a)the effect of the investment on the level and nature of economic activity in Canada, including, without limiting the generality of the foregoing, the effect on employment, on resource processing, on the utilization of parts, components and services produced in Canada and on exports from Canada;

(b)the degree and significance of participation by Canadians in the Canadian business or new Canadian business and in any industry or industries in Canada of which the Canadian business or new Canadian business forms or would form a part;

(c)the effect of the investment on productivity, industrial efficiency, technological development, product innovation and product variety in Canada, including, for greater certainty, the effect of the investment on any rights relating to intellectual property whose development has been funded, in whole or in part, by the Government of Canada;

(d)the effect of the investment on competition within any industry or industries in Canada;

(e)the compatibility of the investment with national industrial, economic and cultural policies, taking into consideration industrial, economic and cultural policy objectives enunciated by the government or legislature of any province likely to be significantly affected by the investment, and including, for greater certainty, the effect of the investment on the use and protection of personal information about Canadians; and

(f)the contribution of the investment to Canada’s ability to compete in world markets.

^note

21Net benefit#

(1)Subject to subsections (2) to (8) and sections 22 and 23, the Minister shall, within 45 days after the certified date referred to in subsection 18(1), send a notice to the applicant that the Minister, having taken into account any information, undertakings and representations referred to the Minister by the Director under section 19 and the relevant factors set out in section 20, is satisfied that the investment is likely to be of net benefit to Canada.

(2)Subject to subsection (3), if, before the end of the 45-day period referred to in subsection (1), a notice is sent under subsection 25.2(1) in respect of the investment, the period during which the Minister may send the notice referred to in subsection (1) expires 30 days after the end of the prescribed period referred to in subsection 25.3(1) or at the end of any further period that the Minister and the applicant agree on.

(3)Subject to subsections (4) and (5), if, before the end of the 45-day period referred to in subsection (1), a notice is sent under subsection 25.2(1) in respect of the investment and if, in respect of the investment, an order is made under subsection 25.3(1), the period during which the Minister may send the notice referred to in subsection (1) expires

(a)30 days after the end of

(i)the prescribed period referred to in subsection 25.3(6) or (7), as the case may be, or

(ii)the further period, if one was agreed on under subsection 25.3(7); or

(b)at the end of any further period that the Minister and the applicant agree on.

(4)If, before the end of the 45-day period referred to in subsection (1), a notice is sent under subsection 25.2(1) in respect of the investment and if, in respect of the investment, an order is made under subsection 25.3(1) and a notice under paragraph 25.3(6)(b) or (c) is sent, the period during which the Minister may send the notice referred to in subsection (1) expires 30 days after the day on which the notice under that paragraph was sent or at the end of any further period that the Minister and the applicant agree on.

(5)If, before the end of the 45-day period referred to in subsection (1), a notice is sent under subsection 25.2(1) in respect of the investment and if an order is made under subsection 25.3(1) in respect of the investment and the Minister refers the investment to the Governor in Council under paragraph 25.3(6)(a) or subsection 25.3(7), the period during which the Minister may send the notice referred to in subsection (1) expires either 30 days after the earlier of the following days or at the end of any further period that the Minister and the applicant agree on:

(a)the day on which the Governor in Council takes any measure under subsection 25.4(1) in respect of the investment, and

(b)the day on which the prescribed period referred to in subsection 25.4(1) ends.

(6)Subject to subsections (7) and (8), if, before the end of the 45-day period referred to in subsection (1), an order is made under subsection 25.3(1) in respect of the investment, the period during which the Minister may send the notice referred to in subsection (1) expires

(a)30 days after the end of

(i)the prescribed period referred to in subsection 25.3(6) or (7), as the case may be, or

(ii)the further period, if one was agreed on under subsection 25.3(7); or

(b)at the end of any further period that the Minister and the applicant agree on.

(7)If, before the end of the 45-day period referred to in subsection (1), an order is made under subsection 25.3(1) in respect of the investment and if, in respect of the investment, a notice is sent under paragraph 25.3(6)(b) or (c), the period during which the Minister may send the notice referred to in subsection (1) expires 30 days after the day on which the notice under that paragraph was sent or at the end of any further period that the Minister and the applicant agree on.

(8)If, before the end of the 45-day period referred to in subsection (1), an order is made under subsection 25.3(1) in respect of the investment and if the Minister refers the investment to the Governor in Council under paragraph 25.3(6)(a) or subsection 25.3(7), the period during which the Minister may send the notice referred to in subsection (1) expires either 30 days after the earlier of the following days or at the end of any further period that the Minister and the applicant agree on:

(a)the day on which the Governor in Council takes any measure under subsection 25.4(1) in respect of the investment, and

(b)the day on which the prescribed period referred to in subsection 25.4(1) ends.

(9)Subject to sections 22 and 23, if the Minister does not send a notice under subsection (1) within the 45-day period referred to in that subsection or, if any of subsections (2) to (8) apply, within the 30-day period or agreed further period referred to in the applicable subsection, the Minister is deemed to be satisfied that the investment is likely to be of net benefit to Canada and shall send a notice to that effect to the applicant.

^note

22Extension#

(1)If none of subsections 21(2) to (8) apply and the Minister is unable to complete the consideration of an investment within the 45-day period referred to in subsection 21(1), the Minister shall, within that period, send a notice to that effect to the applicant and the Minister shall, subject to subsection (3) within 30 days from the date of the sending of the notice or within any further period that may be agreed on by the applicant and the Minister, complete the consideration of the investment.

(2)Subject to subsection (3), if, within the 30-day period referred to in subsection (1) or any further period that is agreed on under that subsection, the Minister is satisfied that the investment is likely to be of net benefit to Canada, the Minister shall, within that period, send a notice to that effect to the applicant.

(3)Subsections 21(2) to (8) apply to this section as though the 45-day period referred to in those subsections were the 30-day period referred to in subsection (1) or the further period as is agreed on under that subsection.

(4)Subject to section 23, if the Minister does not send a notice under subsection (2) within the period referred to in that subsection or, if subsection (3) applies, within the 30-day period or agreed further period referred to in whichever of subsections 21(2) to (8) applies to this section by reason of subsection (3), then the Minister is deemed to be satisfied that the investment is likely to be of net benefit to Canada and shall send a notice to that effect to the applicant.

^note

23Notice of right to make representations and submit undertakings#

(1)If the Minister is not satisfied, within the period provided for in section 21 or 22 to send the notice referred to in subsection 21(1), that an investment is likely to be of net benefit to Canada, the Minister shall send a notice to that effect to the applicant, advising the applicant of their right to make representations and submit undertakings within 30 days from the date of the notice or within any further period that may be agreed on by the applicant and the Minister.

(2)If, after receipt of the notice referred to in subsection (1), the applicant advises the Minister that the applicant wishes to make representations or submit undertakings, the Minister shall afford the applicant a reasonable opportunity, within the 30-day period referred to in subsection (1), or within any agreed to further period, to make representations, in person or by a representative, and to give undertakings to Her Majesty in right of Canada, as the applicant sees fit.

(3)Within a reasonable time after the expiry of the period for making representations and submitting undertakings, the Minister shall, in the light of any such representations and undertakings and having regard to the matters to be taken into account under subsection 21(1), send a notice to the applicant

(a)that the Minister is satisfied that the investment is likely to be of net benefit to Canada; or

(b)confirming that the Minister is not satisfied that the investment is likely to be of net benefit to Canada.

^note

23.1Reasons#

The Minister shall provide reasons for any decision made under paragraph 23(3)(b) and the Minister may provide reasons for any decision made under subsection 21(1) or 22(2) or paragraph 23(3)(a).^note

24Divestiture#

(1)On receipt of a notice under paragraph 23(3)(b), the applicant shall not implement the investment to which the notice relates or, if the investment has been implemented, shall divest himself of control of the Canadian business that is the subject of the investment.

(1.1) to (1.3)[Repealed, 1994, c. 47, s. 134] (repealed)

(2)Notwithstanding section 90 of the Financial Administration Act, where a CUSMA investor is, pursuant to a review under this Part, required to divest control of a cultural business, as defined in subsection 14.1(6), that has been acquired in the manner described in subparagraph 28(1)(d)(ii), where the circumstances described in subsection 14(2) do not apply, Her Majesty in right of Canada may acquire all or part of the cultural business and dispose of all or any part of the cultural business so acquired.

(3)For the purposes of subsection (2), the Governor in Council may, on the recommendation of the Minister and the Treasury Board, by order, designate any Minister of the Crown in right of Canada, or any Crown corporation within the meaning of the Financial Administration Act, to act as agent on behalf of Her Majesty with full authority to do all things necessary, subject to such terms and conditions not inconsistent with the obligations of the parties to the Agreement under Article 32.6 of the Agreement, as the Governor in Council considers appropriate.

(4)The following definitions apply in this section.

Agreement has the same meaning as in section 2 of the Canada–United States–Mexico Agreement Implementation Act. (Accord)

controlled by a CUSMA investor, with respect to a Canadian business, means, notwithstanding subsection 28(2),

(a)the ultimate direct or indirect control in fact of the Canadian business by a CUSMA investor through the ownership of voting interests; or

(b)the ownership by a CUSMA investor of all or substantially all of the assets used in carrying on the Canadian business. (sous le contrôle d’un investisseur ACEUM)

CUSMA country means a country that is a party to the Agreement. (pays ACEUM)

CUSMA investor means

(a)an individual, other than a Canadian, who is a national as defined in Article 1.5 of the Agreement;

(b)a government of a CUSMA country, whether federal, state or local, or an agency thereof;

(c)an entity that is not a Canadian-controlled entity, as determined pursuant to subsection 26(1) or (2), and that is a CUSMA investor-controlled entity, as determined in accordance with subsection (5);

(d)a corporation or limited partnership

(i)that is not a Canadian-controlled entity, as determined pursuant to subsection 26(1),

(ii)that is not a CUSMA investor within the meaning of paragraph (c),

(iii)of which less than a majority of its voting interests are owned by CUSMA investors,

(iv)that is not controlled in fact through the ownership of its voting interests, and

(e)a trust

(i)that is not a Canadian-controlled entity, as determined pursuant to subsection 26(1) or (2),

(ii)that is not a CUSMA investor within the meaning of paragraph (c),

(iii)that is not controlled in fact through the ownership of its voting interests, and

(iv)of which at least two-thirds of its trustees are any combination of Canadians and CUSMA investors; or

(f)any other form of business organization specified by the regulations that is controlled by a CUSMA investor. (investisseur ACEUM)

(5)For the purposes only of determining whether an entity is a CUSMA investor-controlled entity under paragraph (c) of the definition CUSMA investor in subsection (4),

(a)subsections 26(1) and (2) and section 27 apply and, for that purpose,

(i)every reference in those provisions to “Canadian” or “Canadians” shall be read and construed as a reference to “CUSMA investor” or “CUSMA investors”, respectively,

(ii)every reference in those provisions to “non-Canadian” or “non-Canadians” shall be read and construed as a reference to “non-Canadian, other than a CUSMA investor,” or “non-Canadians, other than CUSMA investors,” respectively, except for the reference to “non-Canadians” in subparagraph 27(d)(ii), which shall be read and construed as a reference to “not CUSMA investors”,

(iii)every reference in those provisions to “Canadian-controlled” shall be read and construed as a reference to “CUSMA investor-controlled”, and

(iv)the reference in subparagraph 27(d)(i) to “Canada” shall be read and construed as a reference to “a CUSMA country”; and

(b)where two persons, one being a Canadian and the other being a CUSMA investor, own equally all of the voting shares of a corporation, the corporation is deemed to be CUSMA investor-controlled.

^note

25Information for monitoring#

A non-Canadian that implements an investment in accordance with this Part shall submit such information in his possession relating to the investment as is required from time to time by the Director in order to permit the Director to determine whether the investment is being carried out in accordance with the application filed under section 17 and any representations made or undertakings given in relation to the investment.^note

Part IV.1 · Review of Investments — Injurious to National Security

25.1Application#

This Part applies in respect of an investment, implemented or proposed, by a non-Canadian

(a)to establish a new Canadian business;

(b)to acquire control of a Canadian business in any manner described in subsection 28(1); or

(c)to acquire, in whole or in part, or to establish an entity carrying on all or any part of its operations in Canada if the entity has

(i)a place of operations in Canada,

(ii)an individual or individuals in Canada who are employed or self-employed in connection with the entity’s operations, or

(iii)assets in Canada used in carrying on the entity’s operations.

^note

25.11Beginning of review#

The review of an investment under this Part begins on the day on which it first comes to the attention of the Minister.^note

25.12Requirement to provide information#

The Minister may require the non-Canadian or other person or entity from which the Canadian business or the entity referred to in paragraph 25.1(c) is being acquired to provide to the Minister, within the time and in the manner specified by the Minister, any prescribed information or any other information that the Minister considers necessary for the purposes of the review.^note

25.2Notice#

(1)If the Minister has reasonable grounds to believe that an investment by a non-Canadian could be injurious to national security, the Minister may, within the prescribed period, send to the non-Canadian a notice that an order for the review of the investment may be made under subsection 25.3(1).

(2)If a non-Canadian has not implemented a proposed investment when they receive a notice under subsection (1), they shall not implement the investment unless they receive

(a)a notice under subsection (4);

(b)a notice under paragraph 25.3(6)(b) or (c); or

(c)a copy of an order made under section 25.4 authorizing the investment to be implemented.

(3)[Repealed, 2024, c. 4, s. 14] (repealed)

(4)If the Minister, after the consultation referred to in subsection 25.3(1), does not consider that the investment could be injurious to national security, the Minister shall, within the prescribed period, send to the non-Canadian a notice indicating that consideration of the investment is complete and that no order will be made under that subsection.

^note

25.3Order — further review#

(1)If the Minister, after consultation with the Minister of Public Safety and Emergency Preparedness, considers that an investment could be injurious to national security, the Minister shall make an order within the prescribed period for the further review of the investment.

(1.1)The Minister shall, by order, impose interim conditions in respect of the investment that are applicable until no later than when consideration of the investment is complete, or amend such conditions, if the Minister, after consultation with the Minister of Public Safety and Emergency Preparedness, is satisfied that it is necessary for the purpose of preventing injury to national security that could arise during that review, provided that the imposition of interim conditions does not introduce significant new risks of injury to national security. The Minister shall also delete a condition if the Minister, after such consultation, is satisfied that it is no longer necessary for that purpose.

(1.2)The Statutory Instruments Act does not apply in respect of an order made under this section.

(2)The Minister shall, without delay after an order has been made under this section, send to the non-Canadian making the investment and to any person or entity from which the Canadian business or the entity referred to in paragraph 25.1(c) is being acquired a notice indicating that the order has been made and advising them of their right to make representations and to submit undertakings to the Minister. A copy of the order is to accompany the notice.

(3)If a non-Canadian has not implemented a proposed investment when they receive a notice under subsection (2), they shall not implement the investment unless they receive

(a)a notice under paragraph (6)(b) or (c);

(b)a copy of an order made under section 25.4 authorizing the investment to be implemented.

(4)After receipt of the notice referred to in subsection (2), the non-Canadian or other person or entity may make representations and submit written undertakings, within the time and in the manner specified in the notice.

(5)[Repealed, 2024, c. 4, s. 15] (repealed)

(6)The Minister shall, within the prescribed period,

(a)after consultation with the Minister of Public Safety and Emergency Preparedness, refer the investment under review to the Governor in Council, together with a report of the Minister’s findings and recommendations on the review, if

(i)the Minister is satisfied that the investment would be injurious to national security, or

(ii)on the basis of the information available, the Minister is not able to determine whether the investment would be injurious to national security;

(b)after consultation with the Minister of Public Safety and Emergency Preparedness, send to the non-Canadian a notice indicating that consideration of the investment is complete, if the Minister is satisfied that the investment would not be injurious to national security; or

(c)send to the non-Canadian a notice indicating that consideration of the investment is complete, if the Minister is satisfied, with the concurrence of the Minister of Public Safety and Emergency Preparedness, that the investment would not be injurious to national security because of the undertakings that are given to His Majesty in right of Canada.

(7)If the Minister is unable to complete the consideration of an investment within the prescribed period referred to in subsection (6), the Minister shall, within that period, send a notice to that effect to the non-Canadian. The Minister then has until the end of the period prescribed for this subsection, or any further period that the Minister and the non-Canadian agree on, to take the applicable measures described in paragraph (6)(a), (b) or (c).

^note

25.31New undertakings#

After the Minister sends a notice referred to in paragraph 25.3(6)(c), the Minister may

(a)accept new written undertakings if the Minister is satisfied, with the concurrence of the Minister of Public Safety and Emergency Preparedness, that the risks of injury to national security identified in the notice would continue to be addressed; or

(b)release the non-Canadian or other person or entity from any undertakings, if the Minister is satisfied, with the concurrence of the Minister of Public Safety and Emergency Preparedness, that they are no longer necessary to address those risks.

^note

25.4Governor in Council’s powers#

(1)On the referral of an investment under paragraph 25.3(6)(a) or subsection 25.3(7), the Governor in Council may, by order, within the prescribed period, take any measures in respect of the investment that he or she considers advisable to protect national security, including

(a)directing the non-Canadian not to implement the investment;

(b)authorizing the non-Canadian to make the investment on the terms and conditions contained in the order; or

(c)requiring the non-Canadian to divest themselves of control of the Canadian business or of their investment in the entity.

(2)The Minister shall send a copy of the order to the non-Canadian or other person or entity to which it is directed without delay after it has been made.

(3)The non-Canadian or other person or entity to which the order is directed shall comply with the order.

(4)The Statutory Instruments Act does not apply in respect of the order.

^note

25.5Information to determine compliance#

Non-Canadians or other persons or entities shall, within the time and in the manner specified by the Director, submit any information relating to the investment that is required by the Director in order to permit the Director to determine whether they are complying with

(a)an order made under section 25.3 or 25.4; or

(b)any written undertaking given to His Majesty in right of Canada and referred to in paragraph 25.3(6)(c) or 25.31(a).

^note

25.6Decisions and orders are final#

Decisions and orders of the Governor in Council and of the Minister made under this Part are final and binding and, except for judicial review under the Federal Courts Act, are not subject to appeal or to review by any court.^note

25.7Closed proceeding on judicial review#

(1)The following provisions apply to the judicial review of a decision or order made under this Part:

(a)[Repealed, 2024, c. 16, s. 109] (repealed)

(b)[Repealed, 2024, c. 16, s. 109] (repealed)

(c)[Repealed, 2024, c. 16, s. 109] (repealed)

(d)[Repealed, 2024, c. 16, s. 109] (repealed)

(e)[Repealed, 2024, c. 16, s. 109] (repealed)

(f)if the judge determines that evidence or other information provided by the Minister is not relevant or if the Minister withdraws the evidence or other information, the decision of the judge shall not be based on that evidence or other information and the judge must return it to the Minister; and

(g)the judge shall ensure the confidentiality of all evidence and other information that the Minister withdraws.

(2)In this section, judge means the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice.

^note

25.8Protection of information on appeal#

Section 25.7 applies to any appeal of a decision made under that section and to any further appeal, with any necessary modifications.^note

25.9Notification#

Within 30 days after sending a notice under paragraph 25.3(6)(c) or a copy of the order under subsection 25.4(2), the Minister shall notify the National Security and Intelligence Committee of Parliamentarians and the National Security and Intelligence Review Agency of

(a)the fact that a notice was sent under paragraph 25.3(6)(c) and of the identity of the non-Canadian and the Canadian business or entity referred to in paragraph 25.1(c); or

(b)the fact that an order was made under subsection 25.4(1), of the identity of the non-Canadian and the Canadian business or entity referred to in paragraph 25.1(c) that is the subject of the order, and of whether the order

(i)directed the non-Canadian not to implement the investment that is the subject of the order,

(ii)authorized the investment or contained terms and conditions, or

(iii)required the non-Canadian to divest themselves of control of the Canadian business, or of their investment in the entity, that is the subject of the order.

^note

Part V · Rules and Presumptions

Canadian Status Rules

26Rules respecting control of entities#

(1)Subject to subsections (2.1) to (2.2), (2.31) and (2.32), for the purposes of this Act,

(a)where one Canadian or two or more members of a voting group who are Canadians own a majority of the voting interests of an entity, it is a Canadian-controlled entity;

(b)where paragraph (a) does not apply and one non-Canadian or two or more members of a voting group who are non-Canadians own a majority of the voting interests of an entity, it is not a Canadian-controlled entity;

(c)where paragraphs (a) and (b) do not apply and a majority of the voting interests of an entity are owned by Canadians and it can be established that the entity is not controlled in fact through the ownership of its voting interests by one non-Canadian or by a voting group in which a member or members who are non-Canadians own one-half or more of those voting interests of the entity owned by the voting group, it is a Canadian-controlled entity; and

(d)where paragraphs (a) to (c) do not apply and less than a majority of the voting interests of an entity are owned by Canadians, it is presumed not to be a Canadian-controlled entity unless the contrary can be established by showing that

(i)the entity is controlled in fact through the ownership of its voting interests by one Canadian or by a voting group in which a member or members who are Canadians own a majority of those voting interests of the entity owned by the voting group, or

(ii)in the case of an entity that is a corporation or limited partnership, the entity is not controlled in fact through the ownership of its voting interests and at least two-thirds of the members of its board of directors or, in the case of a limited partnership, at least two-thirds of its general partners, are Canadians.

(2)Subject to subsections (2.1) to (2.2), (2.31) and (2.32), if it can be established that a trust is not controlled in fact through the ownership of its voting interests, subsection (1) does not apply, and the trust is a Canadian-controlled entity if at least two-thirds of its trustees are Canadians.

(2.1)Where an entity that carries on or proposes to carry on a specific type of business activity that is prescribed for the purposes of paragraph 15(a) qualifies as a Canadian-controlled entity by virtue of subsection (1) or (2), the Minister may nevertheless determine that the entity is not a Canadian-controlled entity where, after considering any information and evidence submitted by or on behalf of the entity or otherwise made available to the Minister or the Director, the Minister is satisfied that the entity is controlled in fact by one or more non-Canadians.

(2.11)For the purposes of Part IV.1, in the case of an entity that qualifies as a Canadian-controlled entity by virtue of subsection (1) or (2), the Minister may nevertheless determine that the entity is not a Canadian-controlled entity if, after considering any information and evidence submitted by or on behalf of the entity or otherwise made available to the Minister or the Director, the Minister is satisfied that the entity is controlled in fact by one or more non-Canadians.

(2.2)If an entity referred to in subsection (2.1) or (2.11) has refused or neglected to provide, within a reasonable time, information that the Minister or the Director has requested and that the Minister considers necessary in order to make a decision under that subsection, the Minister may declare that the entity is not a Canadian-controlled entity.

(2.3)A determination made under subsection (2.1) or a declaration made under subsection (2.2) may be retroactive to such date, not earlier than June 19, 1992, as the Minister specifies, in which case the determination or declaration shall, for all purposes of this Act, be deemed to have been made on the date so specified.

(2.31)If an entity qualifies as a Canadian-controlled entity by virtue of subsection (1) or (2), the Minister may nevertheless determine that the entity is not a Canadian-controlled entity if, after considering any information and evidence submitted by or on behalf of the entity or otherwise made available to the Minister or the Director, the Minister is satisfied that the entity is controlled in fact by one or more state-owned enterprises.

(2.32)If an entity referred to in subsection (2.31) has refused or neglected to provide, within a reasonable time, information that the Minister or the Director has requested and that the Minister considers necessary in order to make a decision under that subsection, the Minister may declare that the entity is not a Canadian-controlled entity.

(2.33)A determination made under subsection (2.31) or a declaration made under subsection (2.32) in respect of an entity referred to in subsection (2.31) may be retroactive to any date, not earlier than April 29, 2013, that the Minister specifies, in which case the determination or declaration shall, for all purposes of this Act, be deemed to have been made on the specified date.

(2.4)The Minister shall inform the entity concerned, in writing, of any determination made under any of subsections (2.1), (2.11) and (2.31) or declaration made under subsection (2.2) or (2.32), and of any date specified under subsection (2.3) or (2.33), without delay after the determination or declaration is made.

(3)Where, after considering any information and evidence submitted by or on behalf of a corporation incorporated in Canada the voting shares of which are publicly traded in the open market, the Minister is satisfied that, with respect to the corporation,

(a)the majority of its voting shares are owned by Canadians,

(b)at least four-fifths of the members of its board of directors are Canadian citizens ordinarily resident in Canada,

(c)its chief executive officer and three of its four most highly remunerated officers are Canadian citizens ordinarily resident in Canada,

(d)its principal place of business is located in Canada,

(e)its board of directors supervises the management of its business and affairs on an autonomous basis without direction from any shareholder other than through the normal exercise of voting rights at meetings of its shareholders, and

(f)the circumstances described in paragraphs (a) to (e) have existed for not less than the twelve month period immediately preceding the submission of the information and evidence,

the corporation shall be deemed to be a Canadian for the purpose of making any investment described in subsection 14(1), except an investment falling within a prescribed specific type of business activity that, in the opinion of the Governor in Council, is related to Canada’s cultural heritage or national identity, and the Minister shall so notify the corporation.

(3.1)Subsection (3) does not apply to a corporation for the purposes of Part IV.1.

(4)The Minister may accept, as proof of the circumstances described in paragraphs (3)(e) and (f), a written statement by the corporation to that effect, signed by all the members of its board of directors.

(5)If the material facts submitted by or on behalf of the corporation are accurate, the presumption under subsection (3) applies, from the date of the notification by the Minister referred to in that subsection, for so long as those material facts remain substantially unchanged or for two years from the date of that notification, whichever period is shorter.

(6)Where two persons own equally all of the voting shares of a corporation and at least one of them is a non-Canadian, the corporation is not a Canadian-controlled entity.

^note

27Other rules#

For the purposes of section 26,

(a)where voting interests of an entity are owned by a partnership, a trust, other than a trust described in subsection 26(2), or a joint venture, those voting interests are deemed to be owned by the partners, beneficiaries or members of the joint venture, as the case may be, in the same proportion as their respective ownership interests in the assets of the partnership, trust or joint venture;

(b)a trust described in subsection 26(2) is deemed to be a person for the purposes of the definition voting group in section 3;

(c)any voting shares of a corporation that are issued to bearer are deemed to be owned by non-Canadians unless the contrary is established; and

(d)where voting interests of an entity are held by individuals each of whom holds not more than one per cent of the total number of voting interests of the entity, the Minister shall, in the absence of evidence to the contrary, accept as evidence that those voting interests are owned by individuals who are Canadians a statement purporting to be signed by a person duly authorized by the entity in that behalf indicating that

(i)according to the records of the entity, the individuals who hold those voting interests have addresses in Canada, and

(ii)the person purporting to have signed the statement has no knowledge or reason to believe that those voting interests are owned by individuals who are non-Canadians.

Acquisition of Control Rules

28Manner of acquiring control#

(1)For the purposes of this Act, a non-Canadian acquires control of a Canadian business only by

(a)the acquisition of voting shares of a corporation incorporated in Canada carrying on the Canadian business;

(b)the acquisition of voting interests of an entity that

(i)is carrying on the Canadian business, or

(ii)controls, directly or indirectly, another entity carrying on the Canadian business,

where there is no acquisition of control of any corporation;

(c)the acquisition of all or substantially all of the assets used in carrying on the Canadian business; or

(d)the acquisition of voting interests of an entity that controls, directly or indirectly, an entity in Canada carrying on the Canadian business, where

(i)there is no acquisition of control, directly or indirectly, of a corporation incorporated elsewhere than in Canada that controls, directly or indirectly, an entity in Canada carrying on the Canadian business, or

(ii)there is an acquisition of control described in subparagraph (i).

(2)Subject to subsections (4) to (5), (6.1) and (6.2), for the purposes of this Act,

(a)where one entity controls another entity, it is deemed to control indirectly any entity or entities controlled directly or indirectly by that other entity;

(b)an entity controls another entity directly

(i)where the controlling entity owns a majority of the voting interests of the other entity, or

(ii)where the other entity is a corporation and the controlling entity owns less than a majority of the voting shares of the corporation but controls the corporation in fact through the ownership of one-third or more of its voting shares;

(c)entities that are controlled, directly or indirectly, by the same entity are deemed to be associated with each other, with any other entities controlled by any one or combination of them and with the entity or entities that control them; and

(d)where entities that are associated pursuant to paragraph (c) own voting interests of the same entity, the associated entities may be treated as one entity for the purposes of establishing direct or indirect control of the entity in which they own voting interests.

(3)Subject to subsections (4) to (5), (6.1) and (6.2), for the purposes of this Act,

(a)the acquisition of a majority of the voting interests of an entity or of a majority of the undivided ownership interests in the voting shares of an entity that is a corporation is deemed to be acquisition of control of that entity;

(b)the acquisition of less than a majority of the voting interests of an entity other than a corporation is deemed not to be acquisition of control of that entity;

(c)the acquisition of less than a majority but one-third or more of the voting shares of a corporation or of an equivalent undivided ownership interest in the voting shares of the corporation is presumed to be acquisition of control of that corporation unless it can be established that, on the acquisition, the corporation is not controlled in fact by the acquirer through the ownership of voting shares; and

(d)the acquisition of less than one-third of the voting shares of a corporation or of an equivalent undivided ownership interest in the voting shares of the corporation is deemed not to be acquisition of control of that corporation.

(4)In the case of an entity that carries on or proposes to carry on a specific type of business activity that is prescribed for the purposes of paragraph 15(a), the Minister may, notwithstanding subsection (2) or (3), after considering any information and evidence submitted by or on behalf of the entity or otherwise made available to the Minister or the Director, determine that the entity is or is not controlled by another entity or that there has or has not been an acquisition of control of the entity, where the Minister is satisfied that the entity is or is not controlled in fact by that other entity or that there has or has not in fact been an acquisition of control of that entity, as the case may be.

(4.1)For the purposes of Part IV.1, the Minister may, after considering any information and evidence submitted by or on behalf of an entity or otherwise made available to the Minister or the Director, determine that the entity is or is not controlled by another entity or that there has or has not been an acquisition of control of the entity, if the Minister is satisfied that the entity is or is not controlled in fact by that other entity or that there has or has not in fact been an acquisition of control of that entity, as the case may be.

(5)If an entity referred to in subsection (4) or (4.1) has refused or neglected to provide, within a reasonable time, information that the Minister or the Director has requested and that the Minister considers necessary in order to make a decision under that subsection, the Minister may declare that the entity is or is not controlled by another entity or that there has or has not been an acquisition of control of the entity, as the case may be.

(6)A determination made under subsection (4) or a declaration made under subsection (5) may be retroactive to such date, not earlier than June 19, 1992, as the Minister specifies, in which case the determination or declaration shall, for all purposes of this Act, be deemed to have been made on the date so specified.

(6.1)The Minister may, after considering any information and evidence made available to the Minister or the Director, determine that an entity is or is not controlled by another entity, or that there has or has not been an acquisition of control of an entity, if the Minister is satisfied that the entity is or is not controlled in fact by a state-owned enterprise or that there has or has not been an acquisition of control in fact of that entity by a state-owned enterprise, as the case may be.

(6.2)If an entity or a state-owned enterprise has refused or neglected to provide, within a reasonable time, information that the Minister or the Director has requested and that the Minister considers necessary in order to make a decision under subsection (6.1), the Minister may declare that the entity is or is not controlled by a state-owned enterprise or that there has or has not been an acquisition of control of the entity by a state-owned enterprise, as the case may be.

(6.3)A determination made under subsection (6.1) or a declaration made under subsection (6.2) may be retroactive to any date, not earlier than April 29, 2013, that the Minister specifies, in which case the determination or declaration shall, for all purposes of this Act, be deemed to have been made on the specified date.

(7)The Minister shall inform the entity concerned, in writing, of any determination made under any of subsections (4), (4.1) and (6.1) or declaration made under subsection (5) or (6.2) and of any date specified under subsection (6) or (6.3), without delay after the determination or declaration is made.

^note

29Acquisition by more than one transaction or event#

(1)For the purposes of this Act, the acquisition of anything includes any acquisition thereof that occurs as a result of more than one transaction or event, whether or not those transactions or events occur or have occurred as, or as a part of, a series of related transactions or events and, subject to any provision of this Act, whether or not one or more of those transactions or events occurred before the coming into force of this Act.

(2)For the purposes of subsection (1), where, as a result of more than one transaction or event, not one of which is an acquisition of control within the meaning of subsection 28(1), an entity carrying on a Canadian business is controlled in fact through the ownership of voting interests by a non-Canadian, that non-Canadian is deemed to have acquired control of the entity at the time and in the manner of the latest of those transactions or events.

30Contractual rights to acquire voting interests or assets#

(1)For the purposes of this Act, a non-Canadian who has an absolute right under a written contract to acquire voting interests of an entity or to acquire any assets used in carrying on a business may, at the option of that non-Canadian, treat that right as if it had been exercised and as if that non-Canadian owned the voting interests or assets that are the subject of that right.

(2)For the purposes of this Act, where a voting share has attached to it more than a single voting right, or a fraction of a voting right, that voting share is deemed to be the number of voting shares, or the fraction of a voting share, that corresponds to the number of voting rights or fraction of a voting right that the voting share confers.

31Business partly in Canada#

(1)A Canadian business shall be deemed to be carried on in Canada notwithstanding that it is carried on partly in Canada and partly in some other place.

(2)A part of a business that is capable of being carried on as a separate business is a Canadian business if the business of which it is a part is a Canadian business.

Timing Rules

32New Canadian businesses#

(1)The time at which a new Canadian business is established is the time at which it becomes a Canadian business.

(2)The time at which an investment is implemented is the time at which the new Canadian business that is the subject of the investment is established or the time at which control of the Canadian business that is the subject of the investment is acquired.

Sending Notices, Receipts or Demands

33Means of sending#

Where a notice, receipt or demand is required to be sent by the Minister or the Director under any provision of this Act, it shall be sent by personal delivery, registered mail, telecommunicated text or any other verifiable means of communication.^note

Operation of Other Acts

34Operation of other Acts#

Nothing in or done under the authority of this Act affects the operation of any other Act of Parliament that applies to or in respect of any particular Canadian business or class of Canadian businesses, except as expressly provided in this Act.

Part VI · General

Regulations

35Regulations#

(1)The Governor in Council may make regulations

(a)prescribing anything that, pursuant to any provision of this Act, is to be prescribed; and

(b)prescribing any other matter or thing necessary for carrying into effect the purposes and provisions of this Act.

(1.1)Any regulations prescribing a period for the purposes of subsections 25.2(1) and 25.3(1) may provide for a separate period depending on whether it is in respect of an investment referred to in section 11 or 14 or any other investment and, for the purposes of subsection 25.3(1), depending on whether a notice has or has not been issued under subsection 25.2(1).

(2)Any regulations made for the purposes of section 15 or the definition new Canadian business in section 3 that prescribe a specific type of business activity that, in the opinion of the Governor in Council, is related to Canada’s cultural heritage or national identity shall be laid before each House of Parliament on any of the first five days on which that House is sitting after they are made and shall not come into force before sixty days after they are made.

(3)Any regulations laid before a House of Parliament pursuant to subsection (2) shall be referred to such standing or special committee of that House as may be established or designated for the purpose of studying matters to which the regulations relate.

(4)Subsection (2) does not apply to any regulation referred to in that subsection that comes into force on the day this Act comes into force.

Privileged Information

36Privileged information#

(1)Subject to subsections (3) to (4), all information obtained with respect to a Canadian, a non-Canadian, a business or an entity referred to in paragraph 25.1(c) by the Minister or an officer or employee of Her Majesty in the course of the administration or enforcement of this Act is privileged and no one shall knowingly communicate or allow to be communicated any such information or allow anyone to inspect or to have access to any such information.

(2)Notwithstanding any other Act or law but subject to subsections (3) and (4), no minister of the Crown and no officer or employee of Her Majesty in right of Canada or a province shall be required, in connection with any legal proceedings, to give evidence relating to any information that is privileged under subsection (1) or to produce any statement or other writing containing such information.

(3)Information that is privileged under subsection (1) may, on such terms and conditions and under such circumstances as the Minister deems appropriate,

(a)on request in writing to the Director by or on behalf of the Canadian or non-Canadian to which the information relates, be communicated or disclosed to any person or authority named in the request; or

(b)for any purpose relating to the administration or enforcement of this Act, be communicated or disclosed to a minister of the Crown in right of Canada or a province or to an officer or employee of Her Majesty in right of Canada or a province.

(3.1)Information that is privileged under subsection (1) may be communicated or disclosed

(a)by the Minister to a prescribed investigative body, or an investigative body of a prescribed class, for the purposes of the administration and enforcement of Part IV.1 in the context of that body’s lawful investigations;

(b)by such an investigative body, for the purposes of its lawful investigations; and

(c)by the Minister, on such terms and conditions that the Minister deems appropriate, to a government of a foreign state or an agency thereof that is responsible for the review of foreign investments, for the purpose of national security reviews of foreign investments.

(4)Nothing in this section prohibits the communication or disclosure of

(a)information for the purposes of legal proceedings relating to the administration or enforcement of this Act;

(b)information contained in any written undertaking given to Her Majesty in right of Canada relating to an investment that the Minister is satisfied or is deemed to be satisfied is likely to be of net benefit to Canada;

(c)information to which the public has access;

(d)information the communication or disclosure of which has been authorized in writing by the Canadian or the non-Canadian to which the information relates;

(e)information contained in

(i)any receipt sent pursuant to subsection 13(1) relating to an investment that is not reviewable pursuant to subsection 13(3),

(ii)any notice sent under subsection 21(1) or (9), 22(2) or (4), 23(1) or (3), 25.2(1) or (4) or 25.3(2), paragraph 25.3(6)(b) or (c) or subsection 25.3(7), or

(iii)any demand sent by the Minister under section 39, other than a demand sent for the purposes of the administration or enforcement of Part IV.1;

(e.1)information contained in reasons given by the Minister for sending a notice under subsection 23(1);

(e.2)the fact that an order was made under subsection 25.4(1) and whether the order

(i)directed the non-Canadian not to implement the investment that is the subject of the order,

(ii)authorized the investment, including if it did so on terms and conditions, or

(iii)required the non-Canadian to divest themselves of control of the Canadian business, or of their investment in the entity, that is the subject of the order;

(e.3)any other information contained in an order made under subsection 25.4(1);

(f)information to which a person is otherwise legally entitled;

(g)information contained in reasons given by the Minister for any decision taken under subsection 21(1), 22(2) or 23(3); or

(h)information relating to the acceptance of security under subsection 19(2).

(4.1)The Minister shall inform the Canadian or non-Canadian before communicating or disclosing any financial, commercial, scientific or technical information under paragraph (4)(e.1), (g) or (h), and the Minister shall not communicate or disclose the information if they satisfy the Minister, without delay, that the communication or disclosure would prejudice them.

(4.101)For greater certainty, when communicating or disclosing under paragraph (4)(e.2) the fact that an order was made under subsection 25.4(1), the Minister is not prohibited from communicating or disclosing the identity of the non-Canadian and of the Canadian business or entity referred to in paragraph 25.1(c) that is the subject of the order.

(4.11)The Minister shall inform the Canadian or non-Canadian before communicating or disclosing any information under paragraph (4)(e.3), and the Minister shall not communicate or disclose the information if they satisfy the Minister, without delay, that the communication or disclosure would prejudice them.

(4.2)Despite subsection (1), the Minister may communicate or disclose the fact that an application has been filed under this Act, other than Part IV.1, and at what point the investment to which the application relates is in the review process. The Minister shall inform the non-Canadian and, with their consent, the Canadian business before communicating or disclosing such information and the Minister shall not communicate or disclose the information if either of them satisfy the Minister, without delay, that the communication or disclosure would prejudice them.

(5)No minister of the Crown and no officer or employee of Her Majesty in right of Canada or a province may be required, in connection with any legal proceedings or otherwise, to give evidence relating to or otherwise to communicate or disclose any information referred to in paragraph (4)(b) where, in the opinion of the Minister or a person designated by the Minister, the communication or disclosure of that information is not necessary for any purpose relating to the administration or enforcement of this Act and would prejudicially affect the non-Canadian that gave the written undertaking referred to in that paragraph in the conduct of the business affairs of that non-Canadian.

^note

Written Opinions

37Ministerial opinions#

(1)If any question arises under this Act as to whether an individual or entity that proposes to establish, or to acquire control of, a Canadian business that carries on a specific type of business activity referred to in paragraph 15(a) is a Canadian, the Minister shall, on application by or on behalf of the individual or entity consider the application and any information and evidence submitted in connection with the application and, unless the Minister concludes that the submitted information and evidence is not sufficient to enable the Minister to reach an opinion on the question, shall provide the applicant with a written opinion for the guidance of the applicant.

(1.1)The Minister shall provide his or her opinion no later than 45 days after the Minister concludes that the information and evidence he or she has received is sufficient to enable him or her to reach an opinion on the question.

(2)Anyone may apply to the Minister, with supporting information, for an opinion on the applicability to them of any provision of this Act or the regulations to which subsection (1) does not apply, and the Minister may provide the applicant with a written opinion for the applicant’s guidance. For greater certainty, the application may be in relation to any question that arises under this Act as to whether the applicant is a Canadian.

(2.1)If the Minister decides to provide an opinion under subsection (2), he or she shall provide it no later than 45 days after the Minister concludes that the information he or she has received is sufficient to enable him or her to reach an opinion on the question.

(3)If the material facts submitted by or on behalf of an applicant for an opinion are accurate, a written opinion provided under this section is binding on the Minister and the Director for so long as the material facts on which the opinion was based remain substantially unchanged.

(4)The Minister may authorize the Director or any person the Minister deems qualified to provide written opinions under this section, and any opinion so provided has the same effect as if it had been provided under this section by the Minister.

^note

Guidelines and Interpretation Notes

38Guidelines and interpretation notes#

The Minister may issue and publish, in such manner as the Minister deems appropriate, guidelines and interpretation notes with respect to the application and administration of any provision of this Act or the regulations.

Report

38.1Annual report#

(1)The Director shall, for each fiscal year, submit a report on the administration of this Act to the Minister and the Minister shall make the report available to the public.

(2)The report shall include information on the exercise of ministerial duties and powers under Part IV.1.

^note

Part VII · Remedies, Offences and Punishment

39Ministerial demand#

(1)Where the Minister believes that a non-Canadian, contrary to this Act,

(a)has failed to give a notice under section 12 or file an application under section 17,

(a.1)has failed to provide any prescribed information or any information that has been requested by the Minister or Director,

(b)has implemented an investment the implementation of which is prohibited by section 16, 24, 25.2 or 25.3,

(c)has implemented an investment on terms and conditions that vary materially from those contained in an application filed under section 17 or from any information or evidence provided under this Act in relation to the investment,

(d)has failed to divest himself of control of a Canadian business as required by section 24,

(d.1)has failed to comply with a written undertaking given to His Majesty in right of Canada and referred to in paragraph 25.3(6)(c) or 25.31(a),

(d.2)has failed to comply with an order made under section 25.3 or 25.4,

(e)has failed to comply with a written undertaking given to Her Majesty in right of Canada relating to an investment that the Minister is satisfied or is deemed to be satisfied is likely to be of net benefit to Canada,

(f)has failed to comply with any other provision of this Act or with the regulations, or

(g)has entered into any transaction or arrangement primarily for a purpose related to this Act,

the Minister may send a demand to the non-Canadian, requiring the non-Canadian, forthwith or within such period as is specified in the demand, to cease the contravention, to remedy the default, to show cause why there is no contravention of the Act or regulations or, in the case of undertakings, to justify any non-compliance therewith.

(2)The Minister may send a demand to a person or entity requiring that they immediately, or within any period that may be specified in the demand, cease the contravention, remedy the default or show cause why there is no contravention of the Act if the Minister believes that the person or the entity has failed to comply with

(a)a requirement to provide information under section 25.12 or 25.5;

(b)a written undertaking given to His Majesty in right of Canada and referred to in paragraph 25.3(6)(c) or 25.31(a); or

(c)an order made under section 25.3 or 25.4.

(3)A demand under subsection (1) or (2) shall indicate the nature of the proceedings that may be taken under this Act against the non-Canadian or other person or entity to which it is sent in the event that the non-Canadian, person or entity fails to comply with the demand.

^note

39.1New undertaking#

If the Minister believes that a non-Canadian has failed to comply with a written undertaking given to Her Majesty in right of Canada relating to an investment that the Minister is satisfied or is deemed to be satisfied is likely to be of net benefit to Canada, the Minister may, after the investment has been implemented, accept a new undertaking from the non-Canadian.^note

40Application for court order#

(1)If a non-Canadian or any other person or entity fails to comply with a demand under section 39, an application on behalf of the Minister may be made to a superior court for an order under subsection (2) or (2.1).

(2)If, at the conclusion of the hearing on an application referred to in subsection (1), the superior court decides that the Minister was justified in sending a demand to the non-Canadian or other person or entity under section 39 and that the non-Canadian or other person or entity has failed to comply with the demand, the court may make any order or orders as, in its opinion, the circumstances require, including, without limiting the generality of the foregoing, an order

(a)directing the non-Canadian to divest themselves of control of the Canadian business, or to divest themselves of their investment in the entity, on any terms and conditions that the court considers just and reasonable;

(b)enjoining the non-Canadian from taking any action specified in the order in relation to the investment that might prejudice the ability of a superior court, on a subsequent application for an order under paragraph (a), to effectively accomplish the end of such an order;

(c)directing the non-Canadian to comply with a written undertaking given to Her Majesty in right of Canada in relation to an investment that the Minister is satisfied or is deemed to be satisfied is likely to be of net benefit to Canada;

(c.1)directing the non-Canadian to comply with a written undertaking given to Her Majesty in right of Canada in accordance with an order made under section 25.4;

(d)against the non-Canadian imposing a penalty not exceeding ten thousand dollars for each day the non-Canadian is in contravention of this Act or any provision thereof;

(e)directing the revocation, or suspension for any period specified in the order, of any rights attached to any voting interests acquired by the non-Canadian or of any right to control any such rights;

(f)directing the disposition by any non-Canadian of any voting interests acquired by the non-Canadian or of any assets acquired by the non-Canadian that are or were used in carrying on a Canadian business; or

(g)directing the non-Canadian or other person or entity to provide information requested by the Minister or Director.

(2.1)If, at the conclusion of the hearing on an application referred to in subsection (1), the superior court decides that the Minister was justified in sending a demand to a person or an entity under section 39 and that the person or entity has failed to comply with it, the court may make any order or orders that, in its opinion, the circumstances require, including an order against the person or entity imposing a penalty not exceeding the greater of $25,000 and any prescribed amount for each day of the contravention.

(3)A penalty imposed by an order made under paragraph (2)(d) or subsection (2.1) is a debt due to Her Majesty in right of Canada and is recoverable as such in a superior court.

(4)Everyone who fails or refuses to comply with an order made by a superior court under subsection (2) or (2.1) that is directed to them may be cited and punished by the court that made the order, as for other contempts of that court.

(5)For greater certainty, all rights of appeal provided by law apply in the case of any decision or order made by a superior court under this section, as in the case of other decisions or orders made by that court.

(6)In this section, superior court has the same meaning as in subsection 35(1) of the Interpretation Act but does not include the Supreme Court of Canada, the Federal Court of Appeal or the Tax Court of Canada.

^note

41Vesting orders#

(1)Where any voting interests or assets in respect of which an order is made under paragraph 40(2)(f) are owned by a non-Canadian outside Canada and that non-Canadian fails to comply with the order within such reasonable time as is fixed by the court that made the order, the court may, by order, vest those voting interests or assets in a trustee named by it who may thereupon, notwithstanding any other Act or law, do all such things and execute all such documents as are necessary to give effect to the order of the court.

(2)Any proceeds of the disposition of any voting interests or assets received by a trustee under subsection (1) shall first be applied to the payment of the trustee’s fees and expenses in acting as trustee and thereafter any balance remaining shall be paid by the trustee to those who would, but for the vesting order, have been entitled to receive the proceeds.

42Summary conviction offences#

Every one who contravenes section 36 or who knowingly provides false or misleading information under this Act or the regulations is guilty of an offence punishable on summary conviction.

43Limitation period#

Proceedings by way of summary conviction in respect of an offence under this Act may be instituted at any time within but not later than two years after the time when the subject-matter of the proceedings arose.

Part VIII · [Repealed, 1995, c. 1, s. 49]

Part IX · Transitional, Consequential Amendments and Commencement

Transitional

45Terms, conditions and undertakings#

(1)All terms and conditions of, and all undertakings given in relation to, an investment that has been allowed under the Foreign Investment Review Act, chapter 46 of the Statutes of Canada, 1973-74, are enforceable under this Act as if the investment were subject to this Act.

(2)Any legal proceedings taken in respect of an investment under section 19, 20 or 21 of the Foreign Investment Review Act, chapter 46 of the Statutes of Canada, 1973-74, that are pending on the coming into force of this Act may be continued in respect of that investment under this Act.

(3)Any legal proceedings may be taken under this Act in respect of an investment that has been the subject of any order or deemed allowance under section 12 or 13 of the Foreign Investment Review Act, chapter 46 of the Statutes of Canada, 1973-74.

(4)All information that is privileged under section 14 of the Foreign Investment Review Act, chapter 46 of the Statutes of Canada, 1973-74, remains privileged under this Act, subject to the provisions of section 36 of this Act.

(5)Where an investment, whether implemented or not, notice of which has been given under section 8 of the Foreign Investment Review Act, chapter 46 of the Statutes of Canada, 1973-74, has not, on the coming into force of this Act, been the subject of any order or deemed allowance under section 12 or 13 of the Foreign Investment Review Act, a complete notice under section 12 of this Act or a complete application under section 17 of this Act shall be deemed to have been received by the Director in respect of that investment on the day this Act came into force.

(6)Where an investment to which the Foreign Investment Review Act, chapter 46 of the Statutes of Canada, 1973-74, applied has been implemented, and no notice has been given in respect of that investment under section 8 of that Act prior to the coming into force of this Act, that investment shall be deemed to have been implemented on the day this Act came into force.

(7)Where, on the coming into force of this Act, a person has a binding opinion furnished under section 4 of the Foreign Investment Review Act, chapter 46 of the Statutes of Canada, 1973-74, that the person is not a non-eligible person under that Act, that person is deemed to be a Canadian for so long as the material facts on which that opinion was based remain substantially unchanged or for two years from the date of the coming into force of this Act, whichever period is shorter.

^note

Access to Information Act

46 #

[Amendment]

Bank Act

47 #

[Amendment]

Canadian Ownership and Control Determination Act

48 #

[Amendment]

Citizenship Act

49 #

[Amendment]

Northern Pipeline Act

50 #

[Amendments]

Commencement

*51Coming into force#

This Act or any provision thereof shall come into force on a day or days to be fixed by proclamation.

(Subsection 14.11(6) and section 14.3)

Column 1 | Column 2Trade Agreement | ProvisionAgreement within the meaning of subsection 2(1) of the Canada-Chile Free Trade Agreement Implementation Act | Article B-01Agreement within the meaning of section 2 of the Canada–Peru Free Trade Agreement Implementation Act | Article 105Agreement within the meaning of section 2 of the Canada–Colombia Free Trade Agreement Implementation Act | Article 106Agreement within the meaning of section 2 of the Canada–Panama Economic Growth and Prosperity Act | Article 1.01Agreement within the meaning of section 2 of the Canada–Honduras Economic Growth and Prosperity Act | Article 2.1Agreement within the meaning of section 2 of the Canada–Korea Economic Growth and Prosperity Act | Article 1.8Agreement within the meaning of section 2 of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership Implementation Act | Article 1.3 of the TPP within the meaning of section 2 of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership Implementation ActAgreement within the meaning of subsection 24(4) of this Act | Article 1.5Agreement within the meaning of section 2 of the Canada–Ukraine Free Trade Agreement Implementation Act, 2023 | Article 17.1

Related provisions

— 2009, c. 2, s. 464An investment referred to in section 25.1 of the Investment Canada Act, as enacted by section 453, implemented within the period beginning on February 6, 2009 and ending on the day on which this Act receives royal assent, is subject to review under section 25.3 of that Act, as enacted by section 453, if the Minister of Industry sends a notice to the non-Canadian, within 60 days after the day on which this Act receives royal assent, indicating that the investment shall be subject to a review. — 2013, c. 33, s. 149The following definitions apply in sections 150 to 153.the Act means the Investment Canada Act. (Loi)transition period means the period beginning on April 29, 2013 and ending on the day on which sections 143 and 144 come into force. (période transitoire) — 2013, c. 33, s. 150Any application that is filed under section 17 of the Act before the day on which subsection 14.1(1) of the Act, as enacted by subsection 137(1), comes into force and in respect of which the Minister of Industry has not issued a decision before that day is deemed never to have been filed ifthe investment to which the application relates would be subject to subsection 14.1(1) of the Act, as enacted by subsection 137(1), had the application been made on that day; andthe enterprise value of the assets to which the application relates is less than the amount referred to in paragraph 14.1(1)(a) of the Act, as enacted by subsection 137(1). — 2013, c. 33, s. 151The Minister of Industry may make a determination under subsection 26(2.31) of the Act, as enacted by subsection 143(4), in respect of an entity that has implemented an investment during the transition period only if he or she has sent to the entity, within 60 days after the end of the transition period, a notice stating that he or she is undertaking an assessment of whether the entity was controlled in fact by one or more state-owned enterprises, as defined in section 3 of the Act, at the time the investment was implemented.For greater certainty, subsection 26(2.32) of the Act, as enacted by subsection 143(4), applies if the notice referred to in subsection (1) has been sent. — 2013, c. 33, s. 152If an investment has been implemented during the transition period, the Minister of Industry may make a determination under subsection 28(6.1) of the Act, as enacted by subsection 144(4), in respect of an entity directly or indirectly involved in the investment only if he or she has sent to the entity, within 60 days after the end of the transition period, a notice stating that he or she is undertaking an assessment to determine whether the entity was controlled in fact by a state-owned enterprise, as defined in section 3 of the Act, at the time the investment was implemented, or whether there was an acquisition of control in fact of that entity by such a state-owned enterprise, as the case may be.For greater certainty, subsection 28(6.2) of the Act, as enacted by subsection 144(4), applies if the notice referred to in subsection (1) has been sent. — 2013, c. 33, s. 153Section 37 of the Act, as it read immediately before the day on which section 145 comes into force, continues to apply in respect of applications made under that section 37 before that day. — 2017, c. 6, s. 117Any application that is filed under section 17 of the Investment Canada Act before the day on which section 14.11 of that Act as enacted by section 80 of this Act comes into force and in respect of which the Minister of Industry has not issued a decision before that day is deemed never to have been filed ifthe investment to which the application relates would have been subject to subsections 14.11(1) or (2) of that Act, had the application been filed on that day; andthe enterprise value of the assets to which the application relates is less than the amount referred to in paragraph 14.11(1)(a) of that Act. — 2017, c. 20, s. 194Any application that is filed under section 17 of the Investment Canada Act before the day on which paragraph 14.1(1)(d) of that Act, as enacted by section 192 of this Act, comes into force and in respect of which the Minister of Industry has not made a decision before that day is deemed never to have been filed ifthe investment to which the application relates would have been subject to subsection 14.1(1) of that Act, had the application been filed on that day; andthe enterprise value of the assets to which the application relates is less than the amount referred to in paragraph 14.1(1)(d) of that Act, as enacted by section 192 of this Act. — 2018, c. 23, s. 48Any application that is filed under section 17 of the Investment Canada Act before the day on which section 19 of this Act comes into force and in respect of which the Minister of Industry has not issued a decision before that day is deemed never to have been filed ifthe investment to which the application relates would have been subject to subsections 14.11(1) or (2) of the Investment Canada Act had the application been filed on that day; andthe enterprise value of the assets to which the application relates is less than the amount referred to in subsection 14.11(1) of that Act. — 2021, c. 1, s. 50Any application that is filed under section 17 of the Investment Canada Act before the day on which section 23 of this Act comes into force and in respect of which the Minister of Industry has not made a decision referred to in section 23.1 of the Investment Canada Act before that day is deemed never to have been filed ifthe investment to which the application relates would have been subject to subsection 14.11(1) or (2) of that Act had the application been filed on that day; andthe enterprise value of the assets to which the application relates is less than the amount determined in accordance with subsection 14.11(1) of that Act. — 2024, c. 4, s. 22The following definitions apply in this section.former Act means the Investment Canada Act as it read immediately before the day on which section 15 comes into force. (ancienne loi)new Act means the Investment Canada Act as it reads on the day on which section 15 comes into force. (nouvelle loi)Subject to subsection (3), on or after the day on which section 15 comes into force, the review of any investment under Part IV.1 of the former Act in respect of which a measure has not been taken under subsection 25.3(6) of the former Act shall be taken up and continued in accordance with the new Act.If a notice has been sent under subsection 25.3(2) of the former Act in respect of the investment before the day on which section 15 comes into force,the Minister shall, without delay after that day, send to the non-Canadian making the investment and to any person or entity from which the Canadian business or the entity referred to in paragraph 25.1(c) of the new Act is being acquired, a notice referred to in subsection 25.3(2) of the new Act; andthe prescribed period for the purposes of subsection 25.3(6) of the new Act is the period beginning on the day on which the order under subsection 25.3(1) of the former Act is made and ending 45 days after that day.

Amendments not in force

— 2024, c. 4, s. 2Section 11 of the Investment Canada Act is amended by striking out “and” at the end of paragraph (a), by adding “and” at the end of paragraph (b) and by adding the following after paragraph (b):an investment to acquire, in whole or in part, an entity carrying on all or any part of its operations in Canada and that has a place of operations in Canada, an individual or individuals in Canada who are employed or self-employed in connection with the entity’s operations or assets in Canada used in carrying on the entity’s operations, ifthe entity carries on a prescribed business activity,the non-Canadian could, as a result of the investment, have access to, or direct the use of, material non-public technical information or material assets, andthe non-Canadian would have, as a result of the investment,the power to appoint or nominate any person who has the capacity to direct the business and affairs of the entity, such as a member of the board of directors or of senior management, a trustee of the entity or, in the case of a limited partnership, a general partner, orprescribed special rights with respect to the entity.Section 11 of the Act is renumbered as subsection 11(1) and is amended by adding the following:The Governor in Council may make regulations defining “material assets” and “material non-public technical information” for the purposes of subparagraph (1)(c)(ii). — 2024, c. 4, s. 3Section 12 of the Act is replaced by the following:A non-Canadian making an investment shall, in the prescribed manner, give notice of the investment that includes prescribed information to the Directorin the case of an investment referred to in paragraph 11(1)(b) in respect of a Canadian business that carries on a prescribed business activity or an investment referred to in paragraph 11(1)(c), no later than the prescribed time prior to the implementation of the investment; andin the case of any other investment, within the prescribed period.Subject to subsections 25.2(2) and 25.3(3), a non-Canadian who gives notice of an investment under paragraph (1)(a) shall not implement the investment unless the periods referred to in subsections 25.2(1) and 25.3(1) have expired. — 2024, c. 4, s. 4(2)Subsection 13(2) of the Act is replaced by the following:If a notice given under section 12 is incomplete, the Director shall, within the prescribed period, send a notice to the non-Canadian, specifying the information required to complete the notice under section 12 and requesting that the information be provided to the Director in order to complete that notice. — 2024, c. 4, ss. 7(1), (2)The portion of section 15 of the Act before paragraph (a) is replaced by the following:An investment referred to in paragraph 11(1)(a) or (b) that is subject to notification under Part III and that would not otherwise be reviewable under this Part is reviewable under this Part ifSection 15 of the Act is renumbered as subsection 15(1) and is amended by adding the following:Despite the limits set out in subsections 14(3), 14.1(1) and (1.1) and 14.11(1) and (2), an investment is reviewable under this Part ifthe non-Canadian making the investment is a state-owned enterprise or is controlled by a state-owned enterprise unless the non-Canadian is a trade agreement investor;the Governor in Council, on the recommendation of the Minister, is of the opinion that a review of the investment is in the public interest;the Governor in Council issues an order for the review within 45 days after the certified date referred to in paragraph 13(1)(a); andthe Director sends the non-Canadian making the investment a notice for review. — 2024, c. 4, s. 8Paragraphs 17(2)(b) and (c) of the Act are replaced by the following:in the case of an investment made through an acquisition referred to in subparagraph 28(1)(d)(ii) or an investment with respect to which a notice referred to in paragraph 16(2)(a) has been sent, within the prescribed period; orin the case of an investment reviewable pursuant to section 15, forthwith on receipt of a notice for review referred to in subparagraph 15(1)(b)(ii) or paragraph 15(2)(d). — 2024, c. 4, s. 12Paragraph 25.1(b) of the Act is replaced by the following:to acquire control of a Canadian business in any manner described in section 28;if the non-Canadian is a state-owned enterprise, to acquire any of the assets of a Canadian business; orSection 25.1 of the Act is renumbered as subsection 25.1(1) and is amended by adding the following:For greater certainty, paragraph (1)(c) includes an investment to acquire, in whole or in part, the assets of an entity referred to in that paragraph. — 2024, c. 4, s. 14(1)Subsection 25.2(1) of the Act is replaced by the following:If the Minister has reasonable grounds to believe that an investment by a non-Canadian could be injurious to national security, the Minister may, within the prescribed period, send to the non-Canadian a notice that an order for the further review of the investment may be made under subsection 25.3(1).For the purposes of subsection (1), the fact that a non-Canadian has previously been convicted, within or outside Canada, for an offence involving an act of corruption constitutes, by itself, reasonable grounds. — 2024, c. 4, ss. 20(1), (2)Paragraph 39(1)(a) of the Act is replaced by the following:has failed to give notice in accordance with section 12 or file an application in accordance with section 17,Paragraph 39(1)(b) of the Act is replaced by the following:has implemented an investment the implementation of which is prohibited by section 12, 16, 24, 25.2 or 25.3, — 2024, c. 4, ss. 21(1), (2), (3)Subsection 40(1) of the Act is replaced by the following:An application on behalf of the Minister may be made to a superior court for an order under subsection (2) or (2.1) ifa non-Canadian fails to give notice in accordance with paragraph 12(1)(a) or to file, with respect to a Canadian business that carries on a prescribed business activity, an application in accordance with section 17; ora non-Canadian or any other person or entity fails to comply with a demand under section 39.The portion of subsection 40(2) of the Act before paragraph (a) is replaced by the following:If, at the conclusion of the hearing on an application referred to in subsection (1), the superior court decides that the non-Canadian has failed to give the notice or file the application referred to in paragraph (1)(a), or that the Minister was justified in sending a demand to the non-Canadian or other person or entity under section 39 and that the non-Canadian or other person or entity has failed to comply with the demand, the court may make any order or orders that, in its opinion, the circumstances require, including an orderParagraphs 40(2)(c.1) and (d) of the Act are replaced by the following:directing the non-Canadian to comply with a written undertaking given to His Majesty in right of Canada and referred to in paragraph 25.3(6)(c) or 25.31(a);directing the non-Canadian to comply with an order made under section 25.3;against the non-Canadian imposing a penalty not exceedingin the case of a failure to give notice in accordance with paragraph 12(1)(a) or to file, with respect to a Canadian business that carries on a prescribed business activity, an application in accordance with section 17, the greater of $500,000 and any prescribed amount, orin the case of any other contravention of the provisions of this Act or the regulations, the greater of $25,000 and any prescribed amount for each day of the contravention; — 2026, c. 8, s. 17The schedule to the Investment Canada Act is amended by adding, at the end of column 1, a reference to “Agreement within the meaning of section 2 of the Canada–Indonesia Comprehensive Economic Partnership Agreement Implementation Act” and a corresponding reference to “Article 1.5” in column 2.

Federal laws of Canada reproduced under the Reproduction of Federal Law Order (SI/97-5); not the official version. Source: Justice Laws Website.