Canadian Ownership and Control Determination Act (R.S.C., 1985, c. C-20)

Marginal note:Consent of investor or nominee to audit or examination

• 16 (1) Every applicant for a certificate shall, in the prescribed form and manner, provide the Minister with a consent of

  • (a) any investor having a direct equity percentage in respect of the applicant of one per cent or more, or any nominee of the investor, or

  • (b) any investor having a total equity percentage in respect of the applicant of five per cent or more, or any nominee of the investor,

  whereby the investor, or nominee on behalf of the investor, consents and undertakes to submit to audit or examination of such of the documents, records and books of account of the investor or nominee or both as relate to the Canadian ownership rate of the applicant, and to give all reasonable assistance for that purpose to any person authorized by the Minister for the purpose.

• Marginal note:Idem

  (2) Every applicant for a certificate shall, in the prescribed form and manner, provide the Minister with a consent of any prescribed person or nominee of the prescribed person whereby the prescribed person, or nominee on behalf of the prescribed person, consents and undertakes to submit to audit or examination of such of the documents, records and books of account of the prescribed person or nominee or both as relate to the control status of the applicant, and to give all reasonable assistance for that purpose to any person authorized by the Minister for the purpose.

• Marginal note:Where consent not provided or complied with

  (3) Where an applicant for a certificate fails to provide a consent required under subsection (1) or an investor, or nominee on behalf of an investor, fails to comply with such a consent, the Canadian ownership rate of the investor shall, for the purposes of the application or any certificate issued pursuant to the application, be deemed to be nil.

• Marginal note:Idem

  (4) Where an applicant for a certificate fails to provide a consent required under subsection (2) or a prescribed person, or nominee on behalf of a prescribed person, fails to comply with a consent so provided, the prescribed person shall, for the purposes of the application or any certificate issued pursuant to the application, be deemed to be a non-eligible person.

• Marginal note:Where Canadian ownership rate or control status not properly determined and certified

  (5) Where the Canadian ownership rate of an investor is not determined and certified in the prescribed form and manner, it shall, for the purposes of any application for a certificate, be deemed to be nil, and where the control status of a prescribed person is not determined and certified in the prescribed form and manner, that prescribed person shall, for the purposes of any application for a certificate, be deemed to be a non-eligible person.

• Marginal note:Where prescribed information, etc., not submitted on demand

  (6) Where an applicant for a certificate or a person to whom a certificate has been issued fails to provide the Minister, on demand, with any prescribed form, information, documentation or certification relevant to the determination of the Canadian ownership rate of an investor, that Canadian ownership rate shall, for the purposes of the application or any certificate issued pursuant thereto, be deemed to be nil.

• Marginal note:Exemption where Her Majesty is an investor

  (7) Notwithstanding anything in this section, the Minister may exempt an applicant for a certificate from the application of this section or any provision thereof in respect of any investor that is Her Majesty in right of Canada or a province or an entity all or substantially all of the formal equity or assets of which are owned, directly or indirectly, by Her Majesty in right of Canada or a province.

Disclosure of Information

Marginal note:Privileged information and documentation

17 Information or documentation obtained by the Minister under this Act or by a person or agency referred to in paragraphs 18(1)(a) to (e) is privileged and shall not knowingly be or be permitted to be communicated, disclosed or made available without the written consent of the person from whom it was obtained.

Marginal note:Exceptions

• 18 (1) Information or documentation obtained under this Act may be communicated, disclosed or made available for the purposes of the administration or enforcement of this Act, legal proceedings related thereto or criminal proceedings under an Act of Parliament and may be communicated, disclosed or made available

  • (a) to the Minister of Finance solely for the purposes of evaluating and formulating tax policy in relation to energy matters;

  • (b) to the Minister designated to act as the Minister for the purposes of the Foreign Investment Review Act, chapter 46 of the Statutes of Canada, 1973-74, for any purpose relating to the administration or enforcement of that Act or this Act;

  • (c) to the Minister of Finance for any purpose relating to the administration or enforcement of this Act;

  • (d) to any agency established under an Act of Parliament to which the Minister is, by that Act, required to make available statistics, information and documentation obtained by the Minister under that Act that relate to energy enterprises or corporations that control energy enterprises; and

  • (e) to any person referred to in paragraph 31(2)(b) of the Petroleum Incentives Program Act.

• Marginal note:Idem

  (2) The Minister may communicate, disclose or make available the names, Canadian ownership rates and control status of persons to whom certificates have been issued.

Marginal note:Evidentiary privilege

19 Notwithstanding any other Act or law, no person who obtains information or documentation under this Act shall be required, in connection with any legal proceedings, other than proceedings relating to the administration or enforcement of this Act or criminal proceedings under this Act or any other Act of Parliament, to give evidence relating to any information or documentation that is privileged under this Act or to produce any statement, document, writing or portion thereof containing any of that information or documentation.

Regulations

Marginal note:Regulations

20 The Governor in Council may make regulations

• (a) defining formal equity with respect to persons other than corporations, partnerships or trusts;

• (b) respecting the interests or rights that constitute informal equity;

• (c) prescribing the classes or types of interests or rights to acquire formal equity and prescribing the circumstances in which and the persons by whom those interests or rights shall be deemed to have been exercised or acquired;

• (d) determining classes of formal equity and prescribing the types of shares, interests or rights that shall be excluded from formal equity;

• (e) respecting the calculation or determination of the Canadian ownership rate of any person or class of persons, the authorization of the Minister to make any calculation or determination necessary for those purposes and the manner in which any such calculation or determination shall be made;

• (f) prescribing the circumstances in which a person or class of persons shall be deemed not to be Canadian controlled;

• (g) respecting the determination of the control status of a person other than a corporation;

• (h) respecting the meaning of the words owned, owner and ownership for the purposes of this Act and the regulations;

• (i) prescribing any other matter or thing that is by this Act to be prescribed; and

• (j) respecting such other matters or things as are necessary to carry out the provisions of this Act.

Enforcement

Marginal note:Artificial transactions

• 21 (1) Whether or not the Minister has made a determination of a Canadian ownership rate in respect of an applicant for a certificate, where the Minister is of the opinion that

  • (a) any agreement, arrangement, transaction or operation affecting the Canadian ownership rate of an investor or applicant would result in a determination of the Canadian ownership rate on the basis of formal equity of the applicant that does not truly reflect the degree of participation of persons having interests or rights in the investor or applicant, and

  • (b) one of the main reasons for the agreement, arrangement, transaction or operation was to achieve the result described in paragraph (a),

  the Minister may, at any time, on his own initiative and without any notice or hearing, determine or redetermine the Canadian ownership rate of the applicant having such regard, if any, to that agreement, arrangement, transaction or operation as the Minister considers appropriate in the circumstances.

• Marginal note:New certificate to be issued

  (2) A determination or redetermination pursuant to subsection (1) shall be binding on all persons for the purposes of this Act and the Minister shall, if necessary, issue a new certificate accordingly, stating the Canadian ownership rate or the Canadian ownership rate and control status of the applicant and the effective period of the certificate and, on the issue of a new certificate to any person pursuant to this section, any certificate of that person ceases to be effective as of the day the new certificate is effective.

Marginal note:Failure to comply

22 Subject to section 23, every person who contravenes or fails to comply with subsection 11(1), section 14, 15 or 17 or the regulations is guilty of an offence punishable on summary conviction and liable to a fine not exceeding twenty-five thousand dollars or to imprisonment for a term not exceeding one year or to both.

Marginal note:False information

23 Every applicant for a certificate, holder of a certificate, investor or nominee of an investor who, under this Act or the regulations, submits any information or documentation, makes any statement or answers any question, whether in connection with an application for a certificate or otherwise, knowing that the information, documentation, statement or answer is false or misleading or misrepresents or fails to disclose a material fact, is guilty of an offence and liable

• (a) on summary conviction, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year or to both; or

• (b) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both.

Marginal note:Offence by employee or agent

24 In any prosecution for an offence under this Act or the regulations, it is sufficient proof of the offence to establish that it was committed by an employee or agent of the accused, whether or not the employee or agent is identified or has been prosecuted for the offence, unless the accused establishes that the offence was committed without his knowledge or consent and that he exercised all due diligence to prevent its commission.

Marginal note:Officers, etc., of corporations

25 Where a corporation commits an offence under this Act or the regulations, any officer, director or agent of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the punishment provided for the offence, whether or not the corporation has been prosecuted or convicted.

Marginal note:Limitation period

26 A prosecution by way of summary conviction for an offence under this Act or the regulations may not be instituted more than five years after the time when the subject-matter of the complaint arose.

Judicial Review

Marginal note:Judicial review

27 A person that is directly affected by a determination or redetermination of Canadian ownership rate by the Minister under subsection 7(2), 12(1) or 21(1) may apply for judicial review under the Federal Courts Act by filing a notice of the application in the Federal Court within 30 days after the determination or redetermination is made, or within any further time that the Court or a judge of the Court may fix or allow before or after the end of those 30 days.