Investment Canada Act (R.S.C., 1985, c. 28 (1st Supp.))

Marginal note:Reasons

23.1 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).

Marginal note:Divestiture

• 24 (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• (1.1) to (1.3) [Repealed, 1994, c. 47, s. 134]

• Marginal note:Authority to purchase cultural business

  (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.

• Marginal note:Designation of agent

  (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.

• Marginal note:Definitions

  (4) The following definitions apply in this section.

  Agreement

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

  controlled by a CUSMA investor

  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

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

  CUSMA investor

  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

    • (v) of which two thirds of the members of its board of directors, or of which two thirds of its general partners, as the case may be, are any combination of Canadians and CUSMA 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 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 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)

• Marginal note:Interpretation

  (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.

Marginal note:Information for monitoring

25 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.

PART IV.1Investments Injurious to National Security

Marginal note:Application

25.1 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.

Marginal note:Notice

• 25.2 (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).

• Marginal note:Condition for investment

  (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 paragraph (4)(a) indicating that no order for the review of the investment will be made under subsection 25.3(1);

  • (b) a notice under paragraph 25.3(6)(b) indicating that no further action will be taken in respect of the investment; or

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

• Marginal note:Requirement to provide information

  (3) The Minister may require the non-Canadian or any person or entity from which the Canadian business or the entity referred to in paragraph 25.1(c) is being acquired to provide, 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 determining whether there are reasonable grounds to believe that an investment by a non-Canadian could be injurious to national security.

• Marginal note:Ministerial action

  (4) The Minister shall send to the non-Canadian

  • (a) a notice, which shall be sent within the prescribed period, indicating that no order for the review of the investment will be made under subsection 25.3(1); or

  • (b) a notice referred to in subsection 25.3(2) indicating that an order for the review of the investment has been made.

Marginal note:Reviewable investments

• 25.3 (1) An investment is reviewable under this Part if the Minister, after consultation with the Minister of Public Safety and Emergency Preparedness, considers that the investment could be injurious to national security and the Governor in Council, on the recommendation of the Minister, makes an order within the prescribed period for the review of the investment.

• Marginal note:Notice

  (2) The Minister shall, without delay after the order has been made, 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 an order for the review of the investment has been made and advising them of their right to make representations to the Minister.

• Marginal note:Condition for investment

  (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) indicating that no further action will be taken in respect of the investment; or

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

• Marginal note:Representations

  (4) If, after receipt of the notice referred to in subsection (2), the non-Canadian or other person or entity advises the Minister that they wish to make representations, the Minister shall afford them a reasonable opportunity to make representations in person or by a representative.

• Marginal note:Requirement to provide information

  (5) The Minister may require the non-Canadian or other person or entity to provide, 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.

• Marginal note:Ministerial action

  (6) After consultation with the Minister of Public Safety and Emergency Preparedness, the Minister shall, within the prescribed period,

  • (a) 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; or

  • (b) send to the non-Canadian a notice indicating that no further action will be taken in respect of the investment if the Minister is satisfied that the investment would not be injurious to national security.

• Marginal note:Extension

  (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) or (b).

Marginal note:Governor in Council’s powers

• 25.4 (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 investment on condition that the non-Canadian

    • (i) give any written undertakings to Her Majesty in right of Canada relating to the investment that the Governor in Council considers necessary in the circumstances, or

    • (ii) implement 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.

• Marginal note:Copy of order

  (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.

• Marginal note:Requirement to comply with order

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

• Marginal note:Statutory Instruments Act does not apply

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

Marginal note:Information for determination

25.5 Non-Canadians or other persons or entities that are subject to an order made under section 25.4 shall submit any information in their possession relating to the investment that is required from time to time by the Director in order to permit the Director to determine whether they are complying with the order.

Marginal note:Decisions and orders are final

25.6 Decisions and orders of the Governor in Council, and decisions of the Minister, 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.

PART VRules and Presumptions

Canadian Status Rules

Marginal note:Rules respecting control of entities

• 26 (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 two-thirds of the members of its board of directors or, in the case of a limited partnership, two-thirds of its general partners, are Canadians.

• Marginal note:Trusts

  (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 two-thirds of its trustees are Canadians.

• Marginal note:Minister may determine

  (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.

• Marginal note:Minister may determine

  (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.

• Marginal note:Minister may declare

  (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.

• Marginal note:Retroactivity possible

  (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.

• Marginal note:Minister may determine — control by state-owned enterprise

  (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.

• Marginal note:Minister may declare

  (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.

• Marginal note:Retroactivity possible

  (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.

• Marginal note:Entity to be informed

  (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.

• Marginal note:Where corporation deemed to be Canadian

  (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) 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.

• Marginal note:Exception

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

• Marginal note:Proof

  (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.

• Marginal note:Duration of presumption

  (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.

• Marginal note:Equal ownership

  (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.