;

Bill C-10

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Price Maintenance

Price maintenance

76. (1) On application by the Commissioner or a person granted leave under section 103.1, the Tribunal may make an order under subsection (2) if the Tribunal finds that

(a) a person referred to in subsection (3) directly or indirectly

(i) by agreement, threat, promise or any like means, has influenced upward, or has discouraged the reduction of, the price at which the person’s customer or any other person to whom the product comes for resale supplies or offers to supply or advertises a product within Canada, or

(ii) has refused to supply a product to or has otherwise discriminated against any person or class of persons engaged in business in Canada because of the low pricing policy of that other person or class of persons; and

(b) the conduct has had, is having or is likely to have an adverse effect on competition in a market.

Order

(2) The Tribunal may make an order prohibiting the person referred to in subsection (3) from continuing to engage in the conduct referred to in paragraph (1)(a) or requiring them to accept another person as a customer within a specified time on usual trade terms.

Persons subject to order

(3) An order may be made under subsection (2) against a person who

(a) is engaged in the business of producing or supplying a product;

(b) extends credit by way of credit cards or is otherwise engaged in a business that relates to credit cards; or

(c) has the exclusive rights and privileges conferred by a patent, trade-mark, copyright, registered industrial design or registered integrated circuit topography.

Where no order may be made

(4) No order may be made under subsection (2) if the person referred to in subsection (3) and the customer or other person referred to in subparagraph (1)(a)(i) or (ii) are principal and agent or mandator and mandatary, or are affiliated corporations or directors, agents, mandataries, officers or employees of

(a) the same corporation, partnership or sole proprietorship; or

(b) corporations, partnerships or sole proprietorships that are affiliated.

Suggested retail price

(5) For the purposes of this section, a suggestion by a producer or supplier of a product of a resale price or minimum resale price for the product, however arrived at, is proof that the person to whom the suggestion is made is influenced in accordance with the suggestion, in the absence of proof that the producer or supplier, in so doing, also made it clear to the person that they were under no obligation to accept the suggestion and would in no way suffer in their business relations with the producer or supplier or with any other person if they failed to accept the suggestion.

Advertised price

(6) For the purposes of this section, the publication by a producer or supplier of a product, other than a retailer, of an advertisement that mentions a resale price for the product is proof that the producer or supplier is influencing upward the selling price of any person to whom the product comes for resale, unless the price is expressed in a way that makes it clear to any person whose attention the advertisement comes to that the product may be sold at a lower price.

Exception

(7) Subsections (5) and (6) do not apply to a price that is affixed or applied to a product or its package or container.

Refusal to supply

(8) If, on application by the Commissioner or a person granted leave under section 103.1, the Tribunal finds that any person, by agreement, threat, promise or any like means, has induced a supplier, whether within or outside Canada, as a condition of doing business with the supplier, to refuse to supply a product to a particular person or class of persons because of the low pricing policy of that person or class of persons, and that the conduct of inducement has had, is having or is likely to have an adverse effect on competition in a market, the Tribunal may make an order prohibiting the person from continuing to engage in the conduct or requiring the person to do business with the supplier on usual trade terms.

Where no order may be made

(9) No order may be made under subsection (2) in respect of conduct referred to in subparagraph (1)(a)(ii) if the Tribunal is satisfied that the person or class of persons referred to in that subparagraph, in respect of products supplied by the person referred to in subsection (3),

(a) was making a practice of using the products as loss leaders, that is to say, not for the purpose of making a profit on those products but for purposes of advertising;

(b) was making a practice of using the products not for the purpose of selling them at a profit but for the purpose of attracting customers in the hope of selling them other products;

(d) made a practice of not providing the level of servicing that purchasers of the products might reasonably expect.

Inferences

(10) In considering an application by a person granted leave under section 103.1, the Tribunal may not draw any inference from the fact that the Commissioner has or has not taken any action in respect of the matter raised by the application.

Where proceedings commenced under section 45, 49, 79 or 90.1

(11) No application may be made under this section against a person on the basis of facts that are the same or substantially the same as the facts on the basis of which

(a) proceedings have been commenced against that person under section 45 or 49; or

(b) an order against that person is sought under section 79 or 90.1.

Definition of “trade terms”

(12) For the purposes of this section, “trade terms” means terms in respect of payment, units of purchase and reasonable technical and servicing requirements.

2000, c. 15, s. 13(2)

427. (1) Subsection 78(1) of the Act is amended by adding the word “and” at the end of paragraph (h) and by repealing paragraphs (j) and (k).

2000, c. 15, s. 13(3)

(2) Subsection 78(2) of the Act is repealed.

2002, c. 16, s. 11.4

428. (1) Subsections 79(3.1) to (3.3) of the Act are replaced by the following:

Administrative monetary penalty

(3.1) If the Tribunal makes an order against a person under subsection (1) or (2), it may also order them to pay, in any manner that the Tribunal specifies, an administrative monetary penalty in an amount not exceeding $10,000,000 and, for each subsequent order under either of those subsections, an amount not exceeding $15,000,000.

Aggravating or mitigating factors

(3.2) In determining the amount of an administrative monetary penalty, the Tribunal shall take into account any evidence of the following:

(a) the effect on competition in the relevant market;

(b) the gross revenue from sales affected by the practice;

(d) the financial position of the person against whom the order is made;

(e) the history of compliance with this Act by the person against whom the order is made; and

(f) any other relevant factor.

Purpose of order

(3.3) The purpose of an order made against a person under subsection (3.1) is to promote practices by that person that are in conformity with the purposes of this section and not to punish that person.

R.S., c. 19 (2nd Supp.), s. 45

(2) Subsection 79(7) of the Act is replaced by the following:

Where proceedings commenced under section 45, 49, 76, 90.1 or 92

(7) No application may be made under this section against a person on the basis of facts that are the same or substantially the same as the facts on the basis of which

(a) proceedings have been commenced against that person under section 45 or 49; or

(b) an order against that person is sought by the Commissioner under section 76, 90.1 or 92.

R.S., c. 19 (2nd Supp.), s. 45

429. Section 90 of the Act is replaced by the following:

Non-application of sections 45, 77 and 90.1

90. Section 45, section 77 as it applies to exclusive dealing, and section 90.1 do not apply in respect of a specialization agreement, or any modification of such an agreement, that is registered.

Agreements or Arrangements that Prevent or Lessen Competition Substantially

Order

90.1 (1) If, on application by the Commissioner, the Tribunal finds that an agreement or arrangement — whether existing or proposed — between persons two or more of whom are competitors prevents or lessens, or is likely to prevent or lessen, competition substantially in a market, the Tribunal may make an order

(a) prohibiting any person — whether or not a party to the agreement or arrangement — from doing anything under the agreement or arrangement; or

(b) requiring any person — whether or not a party to the agreement or arrangement — with the consent of that person and the Commissioner, to take any other action.

Factors to be considered

(2) In deciding whether to make the finding referred to in subsection (1), the Tribunal may have regard to the following factors:

(a) the extent to which foreign products or foreign competitors provide or are likely to provide effective competition to the businesses of the parties to the agreement or arrangement;

(b) the extent to which acceptable substitutes for products supplied by the parties to the agreement or arrangement are or are likely to be available;

(i) tariff and non-tariff barriers to international trade,

(ii) interprovincial barriers to trade, and

(iii) regulatory control over entry;

(d) any effect of the agreement or arrangement on the barriers referred to in paragraph (c);

(e) the extent to which effective competition remains or would remain in the market;

(f) any removal of a vigorous and effective competitor that resulted from the agreement or arrangement, or any likelihood that the agreement or arrangement will or would result in the removal of such a competitor;

(g) the nature and extent of change and innovation in any relevant market; and

(h) any other factor that is relevant to competition in the market that is or would be affected by the agreement or arrangement.

Evidence

(3) For the purpose of subsections (1) and (2), the Tribunal shall not make the finding solely on the basis of evidence of concentration or market share.

Exception where gains in efficiency

(4) The Tribunal shall not make an order under subsection (1) if it finds that the agreement or arrangement has brought about or is likely to bring about gains in efficiency that will be greater than, and will offset, the effects of any prevention or lessening of competition that will result or is likely to result from the agreement or arrangement, and that the gains in efficiency would not have been attained if the order had been made or would not likely be attained if the order were made.

Restriction

(5) For the purposes of subsection (4), the Tribunal shall not find that the agreement or arrangement has brought about or is likely to bring about gains in efficiency by reason only of a redistribution of income between two or more persons.

Factors to be considered

(6) In deciding whether the agreement or arrangement is likely to bring about the gains in efficiency described in subsection (4), the Tribunal shall consider whether such gains will result in

(a) a significant increase in the real value of exports; or

(b) a significant substitution of domestic products for imported products.

Exception

(7) Subsection (1) does not apply if the agreement or arrangement is entered into, or would be entered into, only by companies each of which is, in respect of every one of the others, an affiliate.

Exception

(8) Subsection (1) does not apply if the agreement or arrangement relates only to the export of products from Canada, unless the agreement or arrangement

(a) has resulted in or is likely to result in a reduction or limitation of the real value of exports of a product;

(b) has restricted or is likely to restrict any person from entering into or expanding the business of exporting products from Canada; or

(c) has prevented or lessened or is likely to prevent or lessen competition substantially in the supply of services that facilitate the export of products from Canada.

Exception

(9) The Tribunal shall not make an order under subsection (1) in respect of

(a) an agreement or arrangement between federal financial institutions, as defined in subsection 49(3), in respect of which the Minister of Finance has certified to the Commissioner

(i) the names of the parties to the agreement or arrangement, and

(ii) the Minister of Finance’s request for or approval of the agreement or arrangement for the purposes of financial policy;

(b) an agreement or arrangement that constitutes a merger or proposed merger under the Bank Act, the Cooperative Credit Associations Act, the Insurance Companies Act or the Trust and Loan Companies Act in respect of which the Minister of Finance has certified to the Commissioner

(i) the names of the parties to the agreement or arrangement, and

(ii) the Minister of Finance’s opinion that the merger is in the public interest, or that it would be in the public interest, taking into account any terms and conditions that may be imposed under those Acts; or

(c) an agreement or arrangement that constitutes a merger or proposed merger approved under subsection 53.2(7) of the Canada Transportation Act in respect of which the Minister of Transport has certified to the Commissioner the names of the parties to the agreement or arrangement.

Where proceedings commenced under section 45, 49, 76, 79 or 92

(10) No application may be made under this section against a person on the basis of facts that are the same or substantially the same as the facts on the basis of which

(a) proceedings have been commenced against that person under section 45 or 49; or

(b) an order against that person is sought by the Commissioner under section 76, 79 or 92.

Definition of “competitor”

(11) In subsection (1), “competitor” includes a person who it is reasonable to believe would be likely to compete with respect to a product in the absence of the agreement or arrangement.

R.S., c. 19 (2nd Supp.), s. 45

430. Sections 97 and 98 of the Act are replaced by the following:

Limitation period

97. No application may be made under section 92 in respect of a merger more than one year after the merger has been substantially completed.

Where proceedings commenced under section 45, 49, 79 or 90.1

98. No application may be made under section 92 against a person on the basis of facts that are the same or substantially the same as the facts on the basis of which

(a) proceedings have been commenced against that person under section 45 or 49; or

(b) an order against that person is sought under section 79 or 90.1.

2002, c. 16, s. 12

431. (1) Subsections 103.1(1) and (2) of the Act are replaced by the following:

Leave to make application under section 75, 76 or 77

103.1 (1) Any person may apply to the Tribunal for leave to make an application under section 75, 76 or 77. The application for leave must be accompanied by an affidavit setting out the facts in support of the person’s application under that section.

Notice

(2) The applicant must serve a copy of the application for leave on the Commissioner and any person against whom the order under section 75, 76 or 77, as the case may be, is sought.

2002, c. 16, s. 12

(2) Paragraph 103.1(3)(b) of the Act is replaced by the following:

(b) was the subject of an inquiry that has been discontinued because of a settlement between the Commissioner and the person against whom the order under section 75, 76 or 77, as the case may be, is sought.

2002, c. 16, s. 12

(3) Subsection 103.1(4) of the Act is replaced by the following:

Application discontinued

(4) The Tribunal shall not consider an application for leave respecting a matter described in paragraph (3)(a) or (b) or a matter that is the subject of an application already submitted to the Tribunal by the Commissioner under section 75, 76 or 77.

2002, c. 16, s. 12

(4) Subsection 103.1(8) of the Act is replaced by the following:

Granting leave to make application under section 76

(7.1) The Tribunal may grant leave to make an application under section 76 if it has reason to believe that the applicant is directly affected by any conduct referred to in that section that could be subject to an order under that section.

Time and conditions for making application

(8) The Tribunal may set the time within which and the conditions subject to which an application under section 75, 76 or 77 must be made. The application must be made no more than one year after the practice or conduct that is the subject of the application has ceased.

2002, c. 16, s. 12

(5) Subsection 103.1(10) of the Act is replaced by the following:

Limitation

(10) The Commissioner may not make an application for an order under section 75, 76, 77 or 79 on the basis of the same or substantially the same facts as are alleged in a matter for which the Tribunal has granted leave under subsection (7) or (7.1), if the person granted leave has already applied to the Tribunal under section 75, 76 or 77.

2002, c. 16, s. 12

432. Section 103.2 of the Act is replaced by the following:

Intervention by Commissioner

103.2 If a person granted leave under subsection 103.1(7) or (7.1) makes an application under section 75, 76 or 77, the Commissioner may intervene in the proceedings.

2000, c. 15, s. 15; 2002, c. 16, s. 13.1; 2003, c. 22, par. 224(z.18)(E)

433. Section 104.1 of the Act is repealed.

2002, c. 16, s. 14

434. Subsection 105(1) of the Act is replaced by the following:

Consent agreement

105. (1) The Commissioner and a person in respect of whom the Commissioner has applied or may apply for an order under this Part, other than an interim order under section 103.3, may sign a consent agreement.

2002, c. 16, s. 14

435. The portion of subsection 106(1) of the Act before paragraph (a) is replaced by the following:

Rescission or variation of consent agreement or order

106. (1) The Tribunal may rescind or vary a consent agreement or an order made under this Part other than an order under section 103.3 or a consent agreement under section 106.1, on application by the Commissioner or the person who consented to the agreement, or the person against whom the order was made, if the Tribunal finds that

R.S., c. 19 (2nd Supp.), s. 45; 1999, c. 2, s. 27

436. Subsections 110(2) to (6) of the Act are replaced by the following:

Acquisition of assets

(2) Subject to sections 111 and 113, this Part applies in respect of a proposed acquisition of any of the assets in Canada of an operating business if the aggregate value of those assets, determined as of the time and in the manner that is prescribed, or the gross revenues from sales in or from Canada generated from those assets, determined for the annual period and in the manner that is prescribed, would exceed the amount determined under subsection (7) or (8), as the case may be.

Acquisition of shares

(3) Subject to sections 111 and 113, this Part applies in respect of a proposed acquisition of voting shares of a corporation that carries on an operating business or controls a corporation that carries on an operating business

(a) if

(i) the aggregate value of the assets in Canada, determined as of the time and in the manner that is prescribed, that are owned by the corporation or by corporations controlled by that corporation, other than assets that are shares of any of those corporations, would exceed the amount determined under subsection (7) or (8), as the case may be, or

(ii) the gross revenues from sales in or from Canada, determined for the annual period and in the manner that is prescribed, generated from the assets referred to in subparagraph (i) would exceed the amount determined under subsection (7) or (8), as the case may be; and

(b) if, as a result of the proposed acquisition of the voting shares, the person or persons acquiring the shares, together with their affiliates, would own voting shares of the corporation that in the aggregate carry more than the following percentages of the votes attached to all the corporation’s outstanding voting shares:

(i) 20%, if any of the corporation’s voting shares are publicly traded,

(ii) 35%, if none of the corporation’s voting shares are publicly traded, or

(iii) 50%, if the person or persons already own more than the percentage set out in subparagraph (i) or (ii), as the case may be, before the proposed acquisition.

Amalgamation

(4) Subject to subsection (4.1) and section 113, this Part applies in respect of a proposed amalgamation of two or more corporations if one or more of those corporations carries on an operating business, or controls a corporation that carries on an operating business, where

(a) the aggregate value of the assets in Canada, determined as of the time and in the manner that is prescribed, that would be owned by the continuing corporation that would result from the amalgamation or by corporations controlled by the continuing corporation, other than assets that are shares of any of those corporations, would exceed the amount determined under subsection (7) or (8), as the case may be; or

(b) the gross revenues from sales in or from Canada, determined for the annual period and in the manner that is prescribed, generated from the assets referred to in paragraph (a) would exceed the amount determined under subsection (7) or (8), as the case may be.

General limit relating to parties to an amalgamation

(4.1) This Part does not apply in respect of a proposed amalgamation of two or more corporations if one or more of those corporations carries on an operating business or controls a corporation that carries on an operating business, unless each of at least two of the amalgamating corporations, together with its affiliates,

(a) has assets in Canada, determined as of the time and in the manner that is prescribed, that exceed in aggregate value the amount determined under subsection (7) or (8), as the case may be; or

(b) has gross revenues from sales in, from or into Canada, determined for the annual period and in the manner that is prescribed, that exceed in aggregate value the amount determined under subsection (7) or (8), as the case may be.

Combination

(5) Subject to sections 112 and 113, this Part applies in respect of a proposed combination of two or more persons to carry on business otherwise than through a corporation if one or more of those persons proposes to contribute to the combination assets that form all or part of an operating business carried on by those persons, or corporations controlled by those persons, and if

(a) the aggregate value of the assets in Canada, determined as of the time and in the manner that is prescribed, that are the subject-matter of the combination would exceed the amount determined under subsection (7) or (8), as the case may be; or

Combination

(6) Subject to sections 111, 112 and 113, this Part applies in respect of a proposed acquisition of an interest in a combination that carries on an operating business otherwise than through a corporation

(a) if

(i) the aggregate value of the assets in Canada, determined as of the time and in the manner that is prescribed, that are the subject-matter of the combination would exceed the amount determined under subsection (7) or (8), as the case may be, or

(b) if, as a result of the proposed acquisition of the interest, the person or persons acquiring the interest, together with their affiliates, would hold an aggregate interest in the combination that entitles the person or persons to receive more than 35% of the profits of the combination, or more than 35% of its assets on dissolution, or, if the person or persons acquiring the interest are already so entitled, to receive more than 50% of such profits or assets.

Amount for notification

(7) In the year in which this subsection comes into force, the amount for the purposes of subsections (2) to (6) is $70,000,000.

Amount for notification — subsequent years

(8) In any year following the year in which subsection (7) comes into force, the amount for the purposes of any of subsections (2) to (6) is

(a) any amount that is prescribed for that subsection; or

(b) if no amount has been prescribed for that subsection,

(i) the amount determined by the Minister in January of that year by rounding off to the nearest million dollars the amount arrived at by using the formula

A × (B / C)

where

A is the amount for the previous year,

B is the average of the Nominal Gross Domestic Products at market prices for the most recent four consecutive quarters, and

C is the average of the Nominal Gross Domestic Products at market prices for the four consecutive quarters for the comparable period in the year preceding the year used in calculating B, or

(ii) until the Minister has published under subsection (9) an amount for that year determined under subparagraph (i), if the Minister does so at all, the amount for that subsection for the previous year.

Publication in Canada Gazette

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

R.S., c. 19 (2nd Supp.), s. 45; 1999, c. 2, s. 31, c. 31, s. 53(F)

437. Subsections 114(1) to (3) of the Act are replaced by the following:

Notice of proposed transaction

114. (1) Subject to this Part, the parties to a proposed transaction shall, before the transaction is completed, notify the Commissioner that the transaction is proposed and supply the Commissioner with the prescribed information in accordance with this Part, if

(a) a person, or two or more persons pursuant to an agreement or arrangement, propose to acquire assets in the circumstances set out in subsection 110(2), to acquire shares in the circumstances set out in subsection 110(3) or to acquire an interest in a combination in the circumstances set out in subsection 110(6);

(b) two or more corporations propose to amalgamate in the circumstances set out in subsection 110(4); or

Additional information

(2) The Commissioner or a person authorized by the Commissioner may, within 30 days after receiving the prescribed information, send a notice to the person who supplied the information requiring them to supply additional information that is relevant to the Commissioner’s assessment of the proposed transaction.

Contents of notice

(2.1) The notice shall specify the particular additional information or classes of additional information that are to be supplied.

Corporation whose shares are acquired

(3) If a proposed transaction is an acquisition of shares and the Commissioner receives information supplied under subsection (1) by a party to the transaction, other than the corporation whose shares are being acquired, before receiving such information from the corporation,

(a) the Commissioner shall immediately notify the corporation that the Commissioner has received from that party the prescribed information; and

(b) the corporation shall supply the Commissioner with the prescribed information within 10 days after being notified under paragraph (a).

R.S., c. 19 (2nd Supp.), s. 45; 1999, c. 2, par. 37(z.16)

438. Subsection 116(1) of the Act is replaced by the following:

Where information cannot be supplied

116. (1) If any of the information required under section 114 is not known or reasonably obtainable, or cannot be supplied because of the privilege that exists in respect of lawyers and notaries and their clients or because of a confidentiality requirement established by law, the person who is supplying the information may, instead of supplying the information, inform the Commissioner under oath or solemn affirmation of the matters in respect of which information has not been supplied and the reason why it has not been supplied.

1999, c. 2, s. 35

439. Section 123 of the Act is replaced by the following:

Time when transaction may not proceed

123. (1) A proposed transaction referred to in section 114 shall not be completed before the end of

(a) 30 days after the day on which information required under subsection 114(1) has been received by the Commissioner, if the Commissioner has not, within that time, required additional information to be supplied under subsection 114(2); or

(b) 30 days after the day on which the information required under subsection 114(2) has been received by the Commissioner, if the Commissioner has within the 30-day period referred to in paragraph (a) required additional information to be supplied under subsection 114(2).

Waiving of waiting period

(2) A proposed transaction referred to in section 114 may be completed before the end of a period referred to in subsection (1) if, before the end of that period, the Commissioner or a person authorized by the Commissioner notifies the persons who are required to give notice and supply information that the Commissioner does not, at that time, intend to make an application under section 92 in respect of the proposed transaction.

Acquisition of voting shares

(3) In the case of an acquisition of voting shares to which subsection 114(3) applies, the periods referred to in subsection (1) shall be determined without reference to the day on which the information required under section 114 is received by the Commissioner from the corporation whose shares are being acquired.

Failure to comply

123.1 (1) If, on application by the Commissioner, the court determines that a person, without good and sufficient cause, the proof of which lies on the person, has completed or is likely to complete a proposed transaction before the end of the applicable period referred to in section 123, the court may

(a) order the person to submit information required under subsection 114(2);

(b) issue an interim order prohibiting any person from doing anything that it appears to the court may constitute or be directed toward the completion or implementation of the proposed transaction;

(c) in the case of a completed transaction, order any party to the transaction or any other person, in any manner that the court directs, to dissolve the merger or to dispose of assets or shares designated by the court;

(d) in the case of a completed transaction, order the person to pay, in any manner that the court specifies, an administrative monetary penalty in an amount not exceeding $10,000 for each day on which they have failed to comply with section 123, determined by the court after taking into account any evidence of the following:

(i) the person’s financial position,

(ii) the person’s history of compliance with this Act,

(iii) the duration of the period of non-compliance, and

(iv) any other relevant factor; or

(e) grant any other relief that the court considers appropriate.

Purpose of order

(2) The terms of an order under paragraph (1)(d) shall be determined with a view to promoting conduct by the person that is in conformity with the purposes of this Part and not with a view to punishment.

Unpaid monetary penalty

(3) The amount of an administrative monetary penalty imposed under paragraph (1)(d) is a debt due to Her Majesty in right of Canada and may be recovered as such from the person in a court of competent jurisdiction.

Definition of “court”

(4) In this section, “court” means the Tribunal, the Federal Court or the superior court of a province.

Transitional Provision

Agreements or arrangements entered into before royal assent

440. Any party to an agreement or arrangement entered into before the day on which this Act receives royal assent may, within one year after that day, apply under section 124.1 of the Competition Act without payment of any fee for an opinion on the applicability to the agreement or arrangement of section 45 or 90.1 of the Competition Act, as enacted by sections 410 and 429, respectively, as if the agreement or arrangement had not yet been entered into and as if that section 45 or 90.1 were in force.

Consequential Amendments

R.S., c. 19 (2nd Supp.), Part I

Competition Tribunal Act

2002, c. 16, s. 19

441. Subsection 11(1) of the Competition Tribunal Act is replaced by the following:

Hearing of applications

11. (1) The Chairman of the Tribunal, sitting alone, or a judicial member designated by the Chairman, sitting alone, may hear and dispose of applications under subsection 100(1), section 103.1 or 103.3 or subsection 104(1) or 123.1(1) of the Competition Act and any related matters.

R.S., c. C-46

Criminal Code

2004, c. 15, s. 108

442. Subparagraph (c)(i) of the definition “offence” in section 183 of the Criminal Code is replaced by the following:

(i) section 45 (conspiracies, agreements or arrangements between competitors),

R.S., c. 17 (3rd Supp.)

Shipping Conferences Exemption Act, 1987

443. Subsection 4(4) of the Shipping Conferences Exemption Act, 1987 is replaced by the following:

Exception re predatory practices

(4) Subsection (1) does not have the effect of exempting from the application of the Competition Act any member of a conference who engages in, or who conspires, agrees or arranges with another person to engage in, a practice of selling products at prices unreasonably low that has the effect or tendency of substantially lessening competition or eliminating a competitor or is designed to have that effect and that is a practice of anti-competitive acts referred to in paragraph 79(1)(b) of that Act.

Coming into Force

Sections 410, 429 and 442

444. Sections 410, 429 and 442 come into force one year after the day on which this Act receives royal assent.

PART 13

R.S., c. 28 (1st Supp.)

INVESTMENT CANADA ACT

Amendments to the Act

445. Section 2 of the Investment Canada Act is replaced by the following:

Purpose of Act

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

1993, c. 35, s. 1

446. Paragraph (d) of the definition “Canadian” in section 3 of the Act is replaced by the following:

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

447. (1) The portion of subsection 10(1) of the Act before paragraph (a) is replaced by the following:

Exempt transactions

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

2007, c. 6, s. 439(2)

(2) Subparagraphs 10(1)(j)(ii) and (iii) of the French version of the Act are replaced by the following:

(ii) soit par l’unité qui est une entité étrangère à laquelle le surintendant des institutions financières a délivré un agrément l’autorisant à garantir au Canada des risques aux termes de la partie XIII de la Loi sur les sociétés d’assurances, à condition que le revenu brut d’investissement qu’elle retire de l’entreprise canadienne soit ajouté au calcul de son revenu pour l’application du paragraphe 138(9) de la Loi de l’impôt sur le revenu et que les intérêts avec droit de vote de l’unité qui exploite l’entreprise canadienne ou les actifs utilisés dans son exploitation soient placés en fiducie au titre de cette partie,

(iii) soit par une personne morale constituée au Canada dont toutes les actions avec droit de vote émises, à l’exception de celles qui sont nécessaires pour conférer à une personne la qualité d’administrateur, sont la propriété d’une compagnie d’assurance visée au sous-alinéa (i) ou d’une entité étrangère visée au sous-alinéa (ii), ou d’une personne morale que l’une ou l’autre contrôle directement ou indirectement en ayant la propriété des actions avec droit de vote, à condition, dans le cas d’une entité étrangère visée au sous-alinéa (ii), que les intérêts avec droit de vote de l’unité qui exploite l’entreprise canadienne ou les actifs utilisés dans son exploitation soient placés en fiducie au titre de la partie XIII de la Loi sur les sociétés d’assurances;

(3) Subsection 10(2) of the Act is replaced by the following:

Exempt transactions — Part IV.1

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

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

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

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

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

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

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

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

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

If condition not complied with

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

1994, c. 47, s. 133

448. (1) Subsection 14.1(1) of the Act is replaced by the following:

Limits for WTO investors

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

(a) for an investment made at any time in the year that begins on the day on which this paragraph comes into force, or in the following year, $600,000,000;

(b) for an investment made at any time in the two years that begin immediately after the two years referred to in paragraph (a), $800,000,000;

(c) for an investment made at any time in the year that begins immediately after the years for which the amount set out in paragraph (b) applies, $1,000,000,000;

(d) for an investment made at any time in the period that begins immediately after the year for which the amount set out in paragraph (c) applies and ends on the following December 31, $1,000,000,000; and

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

1994, c. 47, s. 133

(2) The portion of subsection 14.1(2) of the Act before the formula is replaced by the following:

Calculation of amount for subsequent years

(2) For the purposes of paragraph (1)(e), the amount for each year to which that paragraph applies shall be determined by the Minister in January of that year by rounding off to the nearest million dollars the amount arrived at by using the formula

1994, c. 47, s. 133

(3) Subsections 14.1(4) and (5) of the Act are replaced by the following:

Investments not reviewable

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

(a) a WTO investor; or

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

Exception

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

1994, c. 47, s. 133

(4) The definitions “financial institution” and “financial service” in subsection 14.1(6) of the Act are repealed.

1994, c. 47, s. 133

449. Section 14.2 of the Act is replaced by the following:

Regulations

14.2 The Governor in Council may make any regulations that the Governor in Council considers necessary for carrying out the purposes and provisions of section 14.1.

450. Section 16 of the Act is amended by adding the following after subsection (2):

Request for notice

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

451. Section 17 of the Act is amended by adding the following after subsection (2):

Additional information

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

1995, c. 1, par. 50(1)(e)

452. Sections 21 to 23 of the Act are replaced by the following:

Net benefit

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

Extension

(2) Subject to subsection (3), if, before the expiry of the 45-day period referred to in subsection (1), a notice is sent under subsection 25.2(1) in respect of the investment, the period during which the Minister may send the notice referred to in subsection (1) is deemed to expire five days after the expiry of the prescribed period referred to in subsection 25.3(1).

Extension

(3) Subject to subsections (4) and (5), if, before the expiry 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) is deemed to expire five days after the expiry of the prescribed period referred to in subsection 25.3(6) or the further period if one was agreed to under that subsection.

Extension

(4) If, before the expiry 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 is sent under paragraph 25.3(6)(b), the period during which the Minister may send the notice referred to in subsection (1) is deemed to expire five days after the day on which the notice under paragraph 25.3(6)(b) was sent.

Extension

(5) If, before the expiry 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), the period during which the Minister may send the notice referred to in subsection (1) is deemed to expire five days after the expiry of the earlier of

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

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

Extension

(6) Subject to subsections (7) and (8), if, before the expiry 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) is deemed to expire five days after the expiry of the prescribed period referred to in subsection 25.3(6) or the further period if one was agreed to under that subsection.

Extension

(7) If, before the expiry 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) is deemed to expire five days after the day on which the notice under paragraph 25.3(6)(b) was sent.

Extension

(8) If, before the expiry 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), the period during which the Minister may send the notice referred to in subsection (1) is deemed to expire five days after the expiry of the earlier of

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

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

Minister deemed to be satisfied

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

Extension

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

Notice

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

Extension

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

Minister deemed to be satisfied

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

Notice of right to make representations and submit undertakings

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

Representations and undertakings

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

Net benefit

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

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

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

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).

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

PART IV.1

INVESTMENTS INJURIOUS TO NATIONAL SECURITY

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.

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).

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

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.

Ministerial action

(4) The Minister shall, within the prescribed period, send to the non-Canadian

(a) a notice 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.

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.

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.

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.

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.

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.

Ministerial action

(6) After consultation with the Minister of Public Safety and Emergency Preparedness, the Minister shall, within the prescribed period, or any further period that is agreed on by the Minister and the non-Canadian,

(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.

Powers of Governor in Council

25.4 (1) On the referral of an investment under paragraph 25.3(6)(a), the Governor in Council may, by order, within the prescribed period, take any measures in respect of the investment that the Governor in Council 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.

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.

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.

Statutory Instruments Act does not apply

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

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.

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.

1993, c. 35, s. 4(1)

454. (1) The portion of subsection 26(1) of the Act before paragraph (a) is replaced by the following:

Rules respecting control of entities

26. (1) Subject to subsections (2.1) to (2.2), for the purposes of this Act,

1993, c. 35, s. 4(2)

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

Trusts

(2) Subject to subsections (2.1) to (2.2), 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.

1993, c. 35, s. 4(2); 1995, c. 1, par. 50(1)(g)

(3) Subsection 26(2.2) of the Act is replaced by the following:

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.

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.

1993, c. 35, s. 4(2)

(4) Subsection 26(2.4) of the Act is replaced by the following:

Entity to be informed

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

(5) Section 26 of the Act is amended by adding the following after subsection (3):

Exception

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

1993, c. 35, s. 5(1)

455. (1) The portion of subsection 28(2) of the Act before paragraph (a) is replaced by the following:

Rules and presumptions respecting control of entities

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

1993, c. 35, s. 5(2)

(2) The portion of subsection 28(3) of the Act before paragraph (a) is replaced by the following:

Presumptions respecting acquisition of control

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

1993, c. 35, s. 5(3); 1995, c. 1, par. 50(1)(h)

(3) Subsection 28(5) of the Act is replaced by the following:

Minister may determine

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

Minister may declare

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

1993, c. 35, s. 5(3)

(4) Subsection 28(7) of the Act is replaced by the following:

Entity to be informed

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

456. Section 35 of the Act is amended by adding the following after subsection (1):

Prescribing periods

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

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

Privileged information

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

(2) The portion of subsection 36(3) of the French version of the Act before paragraph (a) is replaced by the following:

Communication des renseignements

(3) Les renseignements confidentiels visés au paragraphe (1) peuvent, selon les modalités déterminées par le ministre, selon le cas :

(3) Section 36 of the Act is amended by adding the following after subsection (3):

Investigative bodies

(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.

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

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

(5) Subsection 36(4) of the Act is amended by striking out “or” at the end of paragraph (e), by adding “or’’ at the end of paragraph (f) and by adding the following after paragraph (f):

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

(6) Section 36 of the Act is amended by adding the following after subsection (4):

Information referred to in par. (4)(g)

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

Communication or disclosure — application

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

458. (1) Section 37 of the Act is amended by adding the following after subsection (1):

Time for providing opinion

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

(2) Section 37 of the Act is amended by adding the following after subsection (2):

Time for providing opinion

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

459. The Act is amended by adding the following after section 38:

Report

Annual report

38.1 The Director shall, for each fiscal year, submit a report on the administration of this Act, other than Part IV.1, to the Minister and the Minister shall make the report available to the public.

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

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

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

(2) Subsection 39(1) of the Act is amended by adding the following after paragraph (d):

(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,

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

Ministerial demand

(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.

Contents of demand

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

461. The Act is amended by adding the following after section 39:

New undertaking

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

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

Application for court order

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) 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 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

(3) Paragraph 40(2)(a) of the Act is replaced by the following:

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

(4) Subsection 40(2) of the Act is amended by adding the following after paragraph (c):

(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;

(5) Subsection 40(2) of the Act is amended by striking out “or” at the end of paragraph (e), by adding “or” at the end of paragraph (f) and by adding the following after paragraph (f):

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

(6) Subsections 40(3) and (4) of the Act are 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, 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.

Penalties recoverable as debts

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

Contempt of court

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

Transitional Provisions

Certain applications deemed never to have been filed

463. Any application made under the Investment Canada Act that was filed before the day on which subsection 14.1(1) of that Act, as enacted by subsection 448(1), comes into force and in respect of which the Minister of Industry has not issued a decision before that day is deemed never to have been filed if the enterprise value of the assets to which the application relates is less than the amount referred to in paragraph 14.1(1)(a) of that Act, as enacted by subsection 448(1).

Transactions implemented during transitional period

464. An investment referred to in section 25.1 of the Investment Canada Act, as enacted by section 453, implemented within the period beginning on February 6, 2009 and ending on the day on which this Act receives royal assent, is subject to review under section 25.3 of that Act, as enacted by section 453, if the Minister of Industry sends a notice to the non-Canadian, within 60 days after the day on which this Act receives royal assent, indicating that the investment shall be subject to a review.

Coming into Force

February 6, 2009

465. (1) Sections 445, 447 and 453 to 456, subsections 457(1) to (4), section 460 and subsections 462(1), (3), (4) and (6) are deemed to have come into force on February 6, 2009.

Subsections 448(1) and (2)

(2) Subsections 448(1) and (2) come into force on a day to be fixed by order of the Governor in Council.

PART 14

1996, c. 10

CANADA TRANSPORTATION ACT

Amendments to the Act

2001, c. 27, s. 222

466. The definition “Canadian” in subsection 55(1) of the Canada Transportation Act is replaced by the following:

“Canadian”
« Canadien »

“Canadian” means a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, a government in Canada or an agent of such a government or a corporation or other entity that is incorporated or formed under the laws of Canada or a province, that is controlled in fact by Canadians and of which the percentage of voting interests owned and controlled by non-Canadians is not more than

(a) in respect of all non-Canadians, the percentage specified in the regulations, or

(b) in respect of any class of non-Canadians specified in the regulations, the percentage specified in the regulations in respect of that class;

467. The Act is amended by adding the following after section 55:

Regulations

55.1 The Governor in Council may, by regulation,

(a) specify a percentage for the purpose of paragraph (a) of the definition “Canadian” in subsection 55(1), which percentage may not be more than 49%; and

(b) for the purpose of paragraph (b) of that definition, specify classes of non-Canadians and specify a percentage with respect to each such class, which percentage may not be more than 49%.

Coming into Force

Order in council

468. Sections 466 and 467 come into force on a day to be fixed by order of the Governor in Council made on the recommendation of the Minister of Transport.

PART 15

R.S., c. 35 (4th Supp.)

AIR CANADA PUBLIC PARTICIPATION ACT

Amendments to the Act

2000, c. 15, s. 17(1)

469. (1) Paragraphs 6(1)(b) and (c) of the Air Canada Public Participation Act are repealed.

1993, c. 34, s. 3; 1994, c. 47, s. 220 (Sch. IV, s. 1); 2000, c. 15, s. 17(2); 2001, c. 35, s. 1(2) to (4)

(2) Subsections 6(2) to (7) of the Act are repealed.

Transitional Provisions

Articles and by-laws

470. (1) Any provisions of the articles of the Corporation, as defined in subsection 2(1) of the Air Canada Public Participation Act, that impose constraints described in paragraphs 6(1)(b) and (c) of that Act, as those paragraphs read immediately before the coming into force of section 469, and any provisions of the Corporation’s by-laws that give effect to those constraints, have, as of the day on which section 469 comes into force, no further force or effect.

Restatement of articles

(2) The articles of the Corporation may be restated under section 180 of the Canada Business Corporations Act as a result of subsection (1).

Shares no longer subject to constraint

(3) Any shares of the Corporation that, immediately before the coming into force of section 469, were subject to constraints referred to in subsection (1) cease to be subject to those constraints on the day on which that section comes into force.