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Bill C-34

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First Session, Forty-fourth Parliament,

70-71 Elizabeth II – 1 Charles III, 2021-2022

HOUSE OF COMMONS OF CANADA

BILL C-34
An Act to amend the Investment Canada Act
FIRST READING, December 7, 2022

MINISTER OF INNOVATION, SCIENCE AND INDUSTRY
 
91094


SUMMARY

This enactment amends the Investment Canada Act to, among other things,

(a) require notice of certain investments to be given prior to their implementation;

(b) authorize the Minister of Industry, after consultation with the Minister of Public Safety and Emergency Preparedness, to impose interim conditions in respect of investments in order to prevent injury to national security that could arise during the review;

(c) authorize the Minister of Industry to make an order for the further review of investments under Part IV.‍1;

(d) allow written undertakings to be submitted to the Minister of Industry to address risks of injury to national security and allow that Minister, with the concurrence of the Minister of Public Safety and Emergency Preparedness, to complete consideration of an investment because of the undertakings;

(e) introduce rules for the protection of information in the course of judicial review proceedings in relation to decisions and orders under Part IV.‍1;

(f) authorize the Minister of Industry to disclose information that is otherwise privileged under the Act to foreign states for the purposes of foreign investment reviews;

(g) establish a penalty not exceeding the greater of $500,000 and any prescribed amount, for failure to give notice of, or file applications with respect to, certain investments; and

(h) increase the penalty for other contraventions of the Act or the regulations to the greater of $25,000 and any prescribed amount for each day of the contravention.

Available on the House of Commons website at the following address:
www.ourcommons.ca


1st Session, 44th Parliament,

70-71 Elizabeth II – 1 Charles III, 2021-2022

HOUSE OF COMMONS OF CANADA

BILL C-34

An Act to amend the Investment Canada Act

His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

Alternative Title

Alternative title

1 This Act may be cited as the National Security Review of Investments Modernization Act.

R.‍S.‍, c. 28 (1st Supp.‍)

Investment Canada Act

2 (1) Section 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):

  • Start of inserted block

    (c) 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, if

    • (i) the entity carries on a prescribed business activity,

    • (ii) 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, and

    • (iii) the non-Canadian would have, as a result of the investment,

      • (A) 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, or

      • (B) prescribed special rights with respect to the entity.

        End of inserted block

(2) Section 11 of the Act is renumbered as subsection 11(1) and is amended by adding the following:

Regulations

Start of inserted block
(2) The Governor in Council may make regulations defining “material assets” and “material non-public technical information” for the purposes of subparagraph (1)‍(c)‍(ii).
End of inserted block

1995, c. 1, par. 50(1)‍(a)

3 Section 12 of the Act is replaced by the following:

Notice of investment

12  Insertion start (1) Insertion end Insertion start   Insertion end Insertion start A Insertion end non-Canadian making Insertion start an Insertion end investment shall, in the prescribed manner, give notice of the investment Insertion start that includes Insertion end prescribed information to the Director
  • Start of inserted block

    (a) in 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; and

  • (b) in the case of any other investment, within the prescribed period.

    End of inserted block

Condition for investment

Start of inserted block
(2) 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.
End of inserted block

1995, c. 1, par. 50(1)‍(a)

4 (1) Subparagraphs 13(1)‍(b)‍(i) and (ii) of the Act are replaced by the following:

  • (i) the investment is not reviewable Insertion start under Part IV Insertion end , or

  • (ii) unless the Director sends the non-Canadian a notice for review Insertion start under Insertion end section 15 within 21 days after the certified date referred to in paragraph (a), the investment is not reviewable Insertion start under Part IV Insertion end .

1995, c. 1, par. 50(1)‍(a)

(2) Subsection 13(2) of the Act is replaced by the following:

Incomplete notice

(2)  Insertion start If Insertion end a notice given under section 12 is incomplete, the Director shall, Insertion start within the prescribed period Insertion end , 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.

(3) The portion of subsection 13(3) of the Act before paragraph (a) is replaced by the following:

Where investment not reviewable

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

1994, c. 47, s. 133

5 (1) Subparagraph (d)‍(v) of the definition WTO investor in subsection 14.‍1(6) of the Act is replaced by the following:

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

1994, c. 47, s. 133

(2) Subparagraph (e)‍(iv) of the definition WTO investor in subsection 14.‍1(6) of the Act is replaced by the following:

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

2017, c. 6, s. 80

6 (1) Subparagraph (d)‍(v) of the definition trade agreement investor in subsection 14.‍11(6) of the Act is replaced by the following:

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

2017, c. 6, s. 80

(2) Subparagraph (e)‍(iv) of the definition trade agreement investor in subsection 14.‍11(6) of the Act is replaced by the following:

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

7 The portion of section 15 of the Act before paragraph (a) is replaced by the following:

Other reviewable investments

15 An investment subject to notification under Part III — Insertion start other than an investment referred to in paragraph 11(1)‍(c) Insertion end — that would not otherwise be reviewable is reviewable under this Part if

8 Paragraph 17(2)‍(b) of the Act is replaced by the following:

  • (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, within Insertion start the prescribed period Insertion end ; or

2013, c. 33, s. 138

9 (1) Subsection 21(3) of the French version of the Act is replaced by the following:

Prolongation

(3) Sous réserve des paragraphes (4) et (5), si, avant l’expiration du délai de quarante-cinq jours visé au paragraphe (1), l’avis prévu au paragraphe 25.‍2(1) est envoyé relativement à l’investissement et si Insertion start l’arrêté Insertion end visé auparagraphe 25.‍3(1) est pris relativement à celui-ci, le délai pendant lequel le ministre peut envoyer l’avis prévu au paragraphe (1) expire trente jours après l’expiration du délai réglementaire ou du délai supplémentaire visés aux paragraphes 25.‍3(6) ou (7), selon le cas, ou à l’expiration de tout délai supplémentaire sur lequel celui-ci et le demandeur s’entendent. 

2013, c. 33, s. 138

(2) Subsection 21(4) of the Act is replaced by the following:

Extension

(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) Insertion start or (c) Insertion end 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.

2013, c. 33, s. 138

(3) The portion of subsection 21(5) of the French version of the Act before paragraph (a) is replaced by the following:

Prolongation

(5) Si, avant l’expiration du délai de quarante-cinq jours visé au paragraphe (1), l’avis prévu au paragraphe 25.‍2(1) est envoyé relativement à l’investissement et si Insertion start l’arrêté Insertion end visé au paragraphe 25.‍3(1) est pris relativement à celui-ci et que le ministre renvoie la question au gouverneur en conseil en application de l’alinéa 25.‍3(6)a) ou du paragraphe 25.‍3(7), le délai pendant lequel le ministre peut envoyer l’avis prévu au paragraphe (1) expire trente jours après celle des dates ci-après qui est antérieure à l’autre ou à l’expiration de tout délai supplémentaire sur lequel celui-ci et le demandeur s’entendent :

2013, c. 33, s. 138

(4) Subsection 21(6) of the French version of the Act is replaced by the following:

Prolongation

(6) Sous réserve des paragraphes (7) et (8), si, avant l’expiration du délai de quarante-cinq jours visé au paragraphe (1), Insertion start l’arrêté Insertion end visé au paragraphe 25.‍3(1) est pris relativement à l’investissement, le délai pendant lequel le ministre peut envoyer l’avis prévu au paragraphe (1) expire trente jours après l’expiration du délai réglementaire ou du délai supplémentaire visés aux paragraphes 25.‍3(6) ou (7), selon le cas, ou à l’expiration de tout délai supplémentaire sur lequel celui-ci et le demandeur s’entendent.

2013, c. 33, s. 138

(5) Subsection 21(7) of the Act is replaced by the following:

Extension

(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) Insertion start or (c) Insertion end , 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.

2013, c. 33, s. 138

(6) The portion of subsection 21(8) of the French version of the Act before paragraph (a) is replaced by the following:

Prolongation

(8) Si, avant l’expiration du délai de quarante-cinq jours visé au paragraphe (1), Insertion start l’arrêté Insertion end visé au paragraphe 25.‍3(1) est pris relativement à l’investissement et si le ministre renvoie la question au gouverneur en conseil en application de l’alinéa 25.‍3(6)a) ou du paragraphe 25.‍3(7), le délai pendant lequel le ministre peut envoyer l’avis prévu au paragraphe (1) expire trente jours après celle des dates ci-après qui est antérieure à l’autre ou à l’expiration de tout délai supplémentaire sur lequel celui-ci et le demandeur s’entendent :

2020, c. 1, s. 111

10 (1) Subparagraph (d)‍(v) of the definition CUSMA investor in subsection 24(4) of the Act is replaced by the following:

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

2020, c. 1, s. 111

(2) Subparagraph (e)‍(iv) of the definition CUSMA investor in subsection 24(4) of the Act is replaced by the following:

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

2009, c. 2, s. 453

11 The heading of Part IV.‍1 of the Act is replaced by the following:

Insertion start Review of Insertion end Investments — Injurious to National Security

2009, c. 2, s. 453

12 Paragraph 25.‍1(b) of the Act is replaced by the following:

  • (b) to acquire control of a Canadian business in any manner described in Insertion start section 28 Insertion end ; or

13 The Act is amended by adding the following after section 25.‍1:

Beginning of review

Start of inserted block
25.‍11 The review of an investment under this Part begins on the day on which it first comes to the attention of the Minister.
End of inserted block

Requirement to provide information

Start of inserted block
25.‍12 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.
End of inserted block

2009, c. 2, s. 453

14 (1) Subsection 25.‍2(1) of the Act is replaced by the following:

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 Insertion start further Insertion end review of the investment may be made under subsection 25.‍3(1).

2009, c. 2, s. 453

(2) Paragraphs 25.‍2(2)‍(a) and (b) of the Act are replaced by the following:

  • (a) a notice under Insertion start subsection Insertion end (4);

  • (b) a notice under paragraph 25.‍3(6)‍(b) Insertion start or (c) Insertion end ; or

2009, c. 2, s. 453; 2013, c. 33, s. 140

(3) Subsections 25.‍2(3) and (4) of the Act are replaced by the following:

Notice

(4)  Insertion start 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 Insertion end , the Minister shall, within the prescribed period, send to the non-Canadian a notice indicating Insertion start that consideration of the investment is complete Insertion end and that no order will be made under Insertion start that Insertion end subsection.

2009, c. 2, s. 453

15 (1) Subsections 25.‍3(1) and (2) of the Act are replaced by the following:

Order — further review

25.‍3 (1) If the Minister, after consultation with the Minister of Public Safety and Emergency Preparedness, considers that Insertion start an Insertion end investment could be injurious to national security, Insertion start the Minister may make Insertion end an order within the prescribed period for the Insertion start further Insertion end review of the investment.

Interim conditions

Start of inserted block
(1.‍1) The Minister may, 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. The Minister may also delete a condition if the Minister, after such consultation, is satisfied that it is no longer necessary for that purpose.
End of inserted block

Statutory Instruments Act does not apply

Start of inserted block
(1.‍2) The Statutory Instruments Act does not apply in respect of an order made under this section.
End of inserted block

Notice

(2) The Minister shall, without delay after Insertion start an Insertion end order has been made Insertion start under this section Insertion end , 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 Insertion start the Insertion end order has been made and advising them of their right to make representations Insertion start and to submit undertakings Insertion end to Insertion start the Minister. A copy of the order is to accompany the notice Insertion end .

2009, c. 2, s. 453

(2) Paragraph 25.‍3(3)‍(a) of the Act is replaced by the following:

  • (a) a notice under paragraph (6)‍(b) Insertion start or (c) Insertion end ;

2009, c. 2, s. 453

(3) Subsections 25.‍3(4) and (5) of the Act are replaced by the following:

Representations and undertakings

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

2009, c. 2, s. 453; 2013, c. 33, s. 141

(4) Subsections 25.‍3(6) and (7) of the Act are replaced by the following:

Ministerial action

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

  • Start of inserted block

    (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.

    End of inserted block

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), (b) Insertion start or (c) Insertion end .

(5) The Act is amended by adding the following after section 25.‍3:

New undertakings

Start of inserted block
25.‍31 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.

    End of inserted block

2009, c. 2, s. 453

16 Paragraph 25.‍4(1)‍(b) of the Act is replaced by the following:

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

2009, c. 2, s. 453

17 Sections 25.‍5 and 25.‍6 of the Act are replaced by the following:

Information to determine compliance

25.‍5 Non-Canadians or other persons or entities shall, Insertion start within the time and in the manner specified by the Director Insertion end , 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

  • Insertion start (a) Insertion end Insertion start   Insertion end Insertion start an Insertion end order made under section Insertion start 25.‍3 or Insertion end 25.‍4; or

  • Start of inserted block

    (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).

    End of inserted block

Decisions and orders are final

25.‍6 Decisions and orders of the Governor in Council and Insertion start of the Insertion end Minister Insertion start made Insertion end 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.

Closed proceeding on judicial review

Start of inserted block
25.‍7 (1) The following provisions apply to the judicial review of a decision or order made under this Part:

  • (a) at any time during a proceeding, the judge shall, on the request of the Minister, hear submissions on evidence or other information in the absence of the public and of the applicant and their counsel if, in the judge’s opinion, the disclosure of the evidence or other information could be injurious to international relations, national defence or national security or could endanger the safety of any person;

  • (b) the judge shall ensure the confidentiality of the evidence and other information provided by the Minister if, in the judge’s opinion, its disclosure would be injurious to international relations, national defence or national security or would endanger the safety of any person;

  • (c) throughout the proceeding, the judge shall ensure that the applicant is provided with a summary of the evidence and other information available to the judge that enables the applicant to be reasonably informed of the Government of Canada’s case but that does not include anything that, in the judge’s opinion, would be injurious to international relations, national defence or national security or would endanger the safety of any person if disclosed;

  • (d) the judge shall provide the applicant and the Minister with an opportunity to be heard;

  • (e) the decision of the judge may be based on evidence or other information available to the judge even if a summary of that evidence or other information has not been provided to the applicant;

  • (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.

    End of inserted block

Definition of judge

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

Protection of information on appeal

Start of inserted block
25.‍8 Section 25.‍7 applies to any appeal of a decision made under that section and to any further appeal, with any necessary modifications.
End of inserted block

18 (1) Subparagraph 26(1)‍(d)‍(ii) of the Act is replaced by the following:

  • (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 Insertion start at least Insertion end two-thirds of the members of its board of directors or, in the case of a limited partnership, Insertion start at least Insertion end two-thirds of its general partners, are Canadians.

2013, c. 33, s. 143(2)

(2) Subsection 26(2) of the Act is replaced by the following:

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 Insertion start at least Insertion end two-thirds of its trustees are Canadians.

(3) Paragraph 26(3)‍(b) of the Act is replaced by the following:

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

2009, c. 2, s. 457(3)

19 (1) Subsection 36(3.‍1) of the Act is replaced by the following:

Investigative bodies and foreign states

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

  • Insertion start (a) Insertion end  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 Insertion start in the context of Insertion end that body’s lawful investigations;

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

  • Start of inserted block

    (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.

    End of inserted block

(2) Subparagraph 36(4)‍(e)‍(ii) of the Act is replaced by the following:

  • (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) Insertion start or (c) Insertion end or subsection 25.‍3(7), or

20 (1) Paragraph 39(1)‍(a) of the Act is replaced by the following:

  • (a) has failed to give notice Insertion start in accordance with Insertion end section 12 or file an application Insertion start in accordance with Insertion end section 17,

2009, c. 2, s. 460(1)

(2) Paragraph 39(1)‍(b) of the Act is replaced by the following:

  • (b) has implemented an investment the implementation of which is prohibited by section Insertion start 12 Insertion end , 16, 24, 25.‍2 or 25.‍3,

2009, c. 2, s. 460(2)

(3) Paragraphs 39(1)‍(d.‍1) and (d.‍2) of the Act are replaced by the following:

  • (d.‍1) has failed to comply with a Insertion start written Insertion end undertaking given to Insertion start His Insertion end Majesty in right of Canada and Insertion start referred to in paragraph 25.‍3(6)‍(c) or 25.‍31(a) Insertion end ,

  • (d.‍2) has failed to comply with an order made under section Insertion start 25.‍3 or Insertion end 25.‍4,

2009, c. 2, s. 460(3)

(4) Subsection 39(2) of the Act is replaced by the following:

Ministerial demand

(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

  • Insertion start (a) Insertion end  a requirement to provide information under Insertion start section 25.‍12 or 25.‍5 Insertion end ;

  • Start of inserted block

    (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.

    End of inserted block

2009, c. 2, s. 462(1)

21 (1) Subsection 40(1) of the Act is replaced by the following:

Application for court order

40 (1) An application on behalf of the Minister may be made to a superior court for an order under subsection (2) or (2.‍1) if
  • Start of inserted block

    (a) a 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; or

    End of inserted block

  • Insertion start (b) Insertion end Insertion start   Insertion end Insertion start a non-Canadian Insertion end or any other person or entity fails to comply with a demand under section 39.

2009, c. 2, s. 462(2)

(2) The portion of subsection 40(2) of the Act before paragraph (a) is replaced by the following:

Court orders

(2) If, at the conclusion of the hearing on an application referred to in subsection (1), the superior court decides that Insertion start the non-Canadian has failed to give the notice or file the application referred to in paragraph (1)‍(a), or Insertion end 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 Insertion start that Insertion end , in its opinion, the circumstances require, including an order

2009, c. 2, s. 462(4)

(3) Paragraphs 40(2)‍(c.‍1) and (d) of the Act are replaced by the following:

  • (c.‍1) directing the non-Canadian to comply with a written undertaking given to Insertion start His Insertion end Majesty in right of Canada and Insertion start referred to in paragraph 25.‍3(6)‍(c) or 25.‍31(a) Insertion end ;

  • Start of inserted block

    (c.‍2) directing the non-Canadian to comply with an order made under section 25.‍3;

    End of inserted block

  • (d) against the non-Canadian imposing a penalty not exceeding

    • Start of inserted block

      (i) in 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, or

      End of inserted block

    • Insertion start (ii) Insertion end Insertion start   Insertion end Insertion start in the case of any other Insertion end contravention Insertion start of the provisions of Insertion end this Act or Insertion start the regulations Insertion end , the greater of Insertion start $25,000 and any prescribed amount Insertion end for each day of the contravention;

2009, c. 2, s. 462(6)

(4) Subsection 40(2.‍1) of the Act is replaced by the following:

Court orders — person or entity

(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 Insertion start exceeding the greater of $25,000 and any prescribed amount Insertion end for each day Insertion start of the contravention Insertion end .

Transitional Provisions

Definitions

22 (1) The 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)

Review continued under new Act

(2) 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.

Subsections 25.‍3(2) and (6)

(3) 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,

  • (a) 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; and

  • (b) the 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.

Coming into Force

Order in council

23 The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.

Published under authority of the Speaker of the House of Commons


EXPLANATORY NOTES

Investment Canada Act
Clause 2: (1) Relevant portion of section 11:

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

(2) New.
Clause 3: Existing text of section 12:

12 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.

Clause 4: (1) Relevant portion of subsection 13(1):

13 (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

  • .‍.‍.  

  • (b) advising the non-Canadian that

    • (i) the investment is not reviewable, or

    • (ii) unless the Director sends the non-Canadian a notice for review pursuant to section 15 within twenty-one days after the certified date referred to in paragraph (a), the investment is not reviewable.

(2) Existing text of subsection 13(2):

(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) Relevant portion of subsection 13(3):

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

Clause 5: (1) and (2) Relevant portion of the definition:

WTO investor means

  • (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 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 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 two thirds of its trustees are any combination of Canadians and WTO investors, or

Clause 6: (1) and (2) Relevant portion of the definition:

trade agreement investor means

  • (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) two thirds of the members of its board of directors, or 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) two thirds of its trustees are any combination of Canadians and trade agreement investors; or

Clause 7: Relevant portion of section 15:

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

Clause 8: Relevant portion of subsection 17(2):

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

  • .‍.‍.  

  • (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

Clause 9: (1) and (2) Existing text of subsections 21(3) and (4):

(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) 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.

(3) Relevant portion of subsection 21(5):

(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:

(4) and (5) Existing text of subsection 21(6) and (7):

(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), 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.

(6) Relevant portion of subsection 21(8):

(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:

Clause 10: (1) and (2) Relevant portion of the definition:

CUSMA investor means

  • .‍.‍. 

  • (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

Clause 11: Existing text of the heading:
Investments Injurious to National Security
Clause 12: Relevant portion of section 25.‍1:

25.‍1 This Part applies in respect of an investment, implemented or proposed, by a non-Canadian

  • .‍.‍.  

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

Clause 13: New.
Clause 14: (1) Existing text of subsection 25.‍2(1):

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).

(2) Relevant portion of subsection 25.‍2(2):

(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

(3) and (4) Existing text of subsections 25.‍2(3) and (4):

(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.

(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.

Clause 15: (1) Existing text of subsections 25.‍3(1) and (2):

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.

(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.

(2) Relevant portion of subsection 25.‍3(3):

(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

(3) and (4) Existing text of subsections 25.‍3(4) to (7):

(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.

(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.

(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.

(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).

(5) New.
Clause 16: Relevant portion of subsection 25.‍4(1):

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

  • .‍.‍.  

  • (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

Clause 17: Existing text of sections 25.‍5 and 25.‍6:

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.

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.

Clause 18: (1) Relevant portion of subsection 26(1):

26 (1) Subject to subsections (2.‍1) to (2.‍2), (2.‍31) and (2.‍32), for the purposes of this Act,

  • .‍.‍.  

  • (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

    • .‍.‍.  

    • (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.

(2) Existing text of subsection 26(2):

(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.

(3) Relevant portion of subsection 26(3):

(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,

  • .‍.‍.  

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

Clause 19: Existing text of subsection 36(3.‍1):

(3.‍1) Information that is privileged under subsection (1) may be communicated or disclosed by the Minister to a prescribed investigative body, or an investigative body of a prescribed class, if the communication or disclosure is for the purposes of the administration or enforcement of Part IV.‍1 and that body’s lawful investigations. The information may also be communicated or disclosed by that body for the purposes of those investigations.

Clause 20: (1) to (3) Relevant portion of subsection 39(1):

39 (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,

  • (b) has implemented an investment the implementation of which is prohibited by section 16, 24, 25.‍2 or 25.‍3,

  • .‍.‍. 

  • (d.‍1) has failed to comply with an undertaking given to Her Majesty in right of Canada in accordance with an order made under section 25.‍4,

  • (d.‍2) has failed to comply with an order made under section 25.‍4,

(4) Existing text of subsection 39(2):

(2) If the Minister believes that a person or an entity has, contrary to this Act, failed to comply with a requirement to provide information under subsection 25.‍2(3) or 25.‍3(5) or failed to comply with subsection 25.‍4(3), the Minister may send a demand to the 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.

Clause 21: (1) Existing text of subsection 40(1):

40 (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) and (3) Relevant portion of subsection 40(2):

(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

  • .‍.‍.  

  • (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;

(4) Existing text of subsection 40(2.‍1):

(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, without limiting the generality of the foregoing, an order against the person or entity imposing a penalty not exceeding $10,000 for each day on which the person or entity is in contravention of this Act or any of its provisions.


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