Foreign Publishers Advertising Services Act (S.C. 1999, c. 23)

Short Title

Marginal note:Short title

1 This Act may be cited as the Foreign Publishers Advertising Services Act.

Interpretation

Marginal note:Definitions

2 The definitions in this section apply in this Act.

advertising services

advertising services means the supply by a foreign publisher, for payment, of

• (a) advertising space in a periodical that the publisher produces or publishes, or the opportunity to have advertising material accompany such a periodical; and

• (b) access to a target market of consumers. (services publicitaires)

Canadian

Canadian means

• (a) a Canadian citizen;

• (b) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act;

• (c) a Canadian government, whether federal, provincial or local, or an agency of such a government;

• (d) a partnership, trust or joint venture in which a person or any combination of persons referred to in paragraph (a), (b), (c) or (e) beneficially owns or controls, directly or indirectly, interests representing in value more than half of the total value of the assets of the partnership, trust or joint venture, as the case may be;

• (e) a Canadian corporation; and

• (f) a non-profit organization in which more than half of its members are persons referred to in paragraph (a) or (b). (Canadien)

Canadian advertiser

Canadian advertiser means a person or an entity, whether an individual, a corporation, a partnership, a trust, a joint venture, a government, a government agency, an association or a non-profit organization, that

• (a) pays, directly or indirectly, for advertising services relating to their products and services;

• (b) has a place of business in Canada;

• (c) has at least one individual in Canada who is employed or self-employed in connection with their business; and

• (d) has assets in Canada that are used in carrying on their business. (annonceur canadien)

Canadian corporation

Canadian corporation means a corporation

• (a) that is incorporated under the laws of Canada or a province;

• (b) whose principal place of business is in Canada;

• (c) whose chairperson or other presiding officer and more than half of whose directors or other similar officers are Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act;

• (d) in the case of a corporation with share capital, of which Canadians beneficially own or control, other than by way of shares held only as security, directly or indirectly, in the aggregate more than half of all the issued and outstanding voting shares representing more than half of the votes; and

• (e) in the case of a corporation without share capital, of which Canadians beneficially own or control, directly or indirectly, interests representing in value more than half of the total value of the assets. (société canadienne)

directed at the Canadian market

directed at the Canadian market, in relation to advertising services, means that the target market related to those advertising services consists primarily of consumers in Canada. (services publicitaires destinés au marché canadien)

foreign publisher

foreign publisher means a person who supplies advertising services by means of a periodical that they have the right to produce or publish and who is not a Canadian. (éditeur étranger)

Minister

Minister means the member of the Queen’s Privy Council for Canada that the Governor in Council designates as the Minister for the purposes of this Act. (ministre)

periodical

periodical means a printed publication that appears in consecutively numbered or dated issues, published under a common title, usually at regular intervals, not more than once every week, excluding special issues, and at least twice every year. It does not include a catalogue, a directory, a newsletter or a newspaper. (périodique)

voting share

voting share means a share of any class of shares of a corporation carrying voting rights under all circumstances or by reason of an event that has occurred and is continuing or by reason of a condition that has been fulfilled. It includes

• (a) a security that is convertible into such a share at the time of making a calculation of the percentage of shares owned or controlled by Canadians; and

• (b) an option or a right to acquire such a share, or the security referred to in paragraph (a), that is exercisable at the time of making the calculation referred to in that paragraph. (action avec droit de vote)

Prohibition

Marginal note:Supplying advertising services

• 3 (1) No foreign publisher shall supply advertising services directed at the Canadian market to a Canadian advertiser or a person acting on their behalf.

• Marginal note:Deemed foreign publisher — licensee

  (2) For the purpose of this Act, a person who produces or publishes a periodical or a substantial part of a periodical under licence or other authority granted, directly or indirectly, by a foreign publisher is deemed to be a foreign publisher.

• Marginal note:Deemed foreign publisher — control

  (3) For the purpose of this Act, a person who supplies advertising services by means of a periodical that they have the right to produce or publish and who is controlled in any manner by a person or entity that is not a Canadian that results in control in fact, whether directly through the ownership of securities or indirectly through a trust, an agreement, an arrangement or otherwise, is deemed to be a foreign publisher.

• Marginal note:Members deemed non-Canadian

  (4) In a prosecution for an offence under subsection (1), each member of either of the following is deemed not to be a Canadian:

  • (a) a partnership, trust or joint venture that is non-Canadian by virtue of the application of paragraph (d) of the definition Canadian in section 2; or

  • (b) a non-profit organization that is non-Canadian by virtue of the application of paragraph (f) of the definition Canadian in section 2.

• Marginal note:Deemed acting on behalf of Canadian advertiser

  (5) For the purpose of subsection (1), an agent or a representative of a Canadian advertiser or a person or entity not dealing at arm’s length with a Canadian advertiser who obtains in their own name, in Canada or elsewhere, advertising services supplied by a foreign publisher is deemed to be acting on behalf of that Canadian advertiser.

• Marginal note:Arm’s length

  (6) For the purpose of subsection (5),

  • (a) related persons are deemed not to deal with each other at arm’s length; and

  • (b) it is a question of fact whether persons not related to each other deal with each other at arm’s length.

• Marginal note:Related persons

  (7) For the purpose of subsection (6), persons are related to each other if they are related persons within the meaning of subsections 251(2) to (6) of the Income Tax Act, except that

  • (a) references in those subsections to “corporation” are to be read as references to “corporation, partnership or joint venture”; and

  • (b) references in those subsections to “shares” and “shareholders”, in relation to a partnership or joint venture, are to be read as references to “rights” and “members”, respectively.

Investigations

Marginal note:Power to investigate

• 4 (1) The Minister may cause any investigation that the Minister considers necessary to be made into an alleged supply of advertising services in contravention of section 3.

• Marginal note:Designation of investigator

  (2) The Minister may designate any person to carry out an investigation under this section and shall furnish them with a certificate of that designation in a form that the Minister may specify. The investigator shall, on request, produce the certificate to any person in charge of a place under investigation.

Marginal note:Search warrant and powers of investigators

• 5 (1) An investigator may, under a warrant issued under section 487 of the Criminal Code with any modifications that the circumstances require, enter any place and make any investigation that the investigator considers necessary. For that purpose, the investigator may

  • (a) require any person to provide the investigator with any documents, whether in physical or electronic form, that the investigator believes may contain information that is relevant to the investigation in order that the investigator may examine or copy them;

  • (b) inquire into any negotiations, transactions, arrangements or operations related to the supply of advertising services to a Canadian advertiser that appear relevant to the investigation; and

  • (c) administer oaths and take and receive affidavits, declarations and solemn affirmations.

• Marginal note:Return of things obtained

  (2) Anything obtained by an investigator conducting an investigation under this section shall be returned as soon as practicable after it is no longer required for the investigation or any proceedings that may result from it.

Marginal note:Obstruction of investigator

6 No person shall obstruct or hinder, or make any false or misleading statement in a material respect to, an investigator who is carrying out functions under this Act.

Ministerial Demands and Judicial Proceedings

Marginal note:Ministerial demand

• 7 (1) The Minister may send a demand to a foreign publisher if the Minister believes that the foreign publisher

  • (a) has supplied advertising services in contravention of section 3 or otherwise contravened this Act; or

  • (b) has entered into a transaction or an arrangement that, if carried into effect, would or would be likely to lead to a contravention of this Act.

• Marginal note:Contents of demand

  (2) The Minister may, in the demand, require the foreign publisher, without delay or within a period specified in the demand,

  • (a) to stop supplying advertising services in contravention of section 3 or to otherwise stop contravening this Act;

  • (b) not to execute the transaction or finalize the arrangement; or

  • (c) to show cause why no contravention of this Act has occurred or will occur.

• Marginal note:Nature of proceedings

  (3) The demand shall indicate the nature of proceedings under this Act that may be taken against the foreign publisher if the foreign publisher fails to comply with the demand.

Marginal note:Application for court order

• 8 (1) The Minister may apply to a superior court of a province or the Federal Court for an order against a foreign publisher who fails to comply with a demand.

• Marginal note:Orders

  (2) If a court concludes, after hearing an application, that the Minister’s demand was justified and that the foreign publisher has failed to comply with it, the court may make any order that it considers appropriate in the circumstances, including

  • (a) an order to stop supplying advertising services in contravention of section 3 or to otherwise comply with this Act on any terms and conditions that the court considers appropriate; and

  • (b) an order not to take certain specified actions relating to advertising services that might prejudice the ability of a court, on a subsequent application for an order under paragraph (a), to issue an effective order.

• Marginal note:Urgency

  (3) A court that is satisfied as to the urgency of the situation may, on ex parte application, make an order referred to in subsection (2), but that order may have effect for no more than 10 days.

• Marginal note:Extension or revocation of order

  (4) A court that issues an order under subsection (3) may, on application by the Minister or by any person to whom the order is directed, by order,

  • (a) extend the duration of that order, with or without modification, for any specified period; or

  • (b) revoke that order.

• Marginal note:Contempt of court

  (5) Every person who fails to comply with the requirements or directions of any order made by a court under this section may be cited and punished by the court that made the order, as for other contempts of that court.

• Marginal note:Rights of appeal

  (6) 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.