Budget Implementation Act, 2009 (S.C. 2009, c. 2)
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Assented to 2009-03-12
PART 13R.S., c. 28 (1st Supp.)INVESTMENT CANADA ACT
Amendments to the Act
453. The Act is amended by adding the following after section 25:
PART IV.1INVESTMENTS INJURIOUS TO NATIONAL SECURITY
Marginal note:Application
25.1 This Part applies in respect of an investment, implemented or proposed, by a non-Canadian
(a) to establish a new Canadian business;
(b) to acquire control of a Canadian business in any manner described in subsection 28(1); or
(c) to acquire, in whole or in part, or to establish an entity carrying on all or any part of its operations in Canada if the entity has
(i) a place of operations in Canada,
(ii) an individual or individuals in Canada who are employed or self-employed in connection with the entity’s operations, or
(iii) assets in Canada used in carrying on the entity’s operations.
Marginal note:Notice
25.2 (1) If the Minister has reasonable grounds to believe that an investment by a non-Canadian could be injurious to national security, the Minister may, within the prescribed period, send to the non-Canadian a notice that an order for the review of the investment may be made under subsection 25.3(1).
Marginal note:Condition for investment
(2) If a non-Canadian has not implemented a proposed investment when they receive a notice under subsection (1), they shall not implement the investment unless they receive
(a) a notice under paragraph (4)(a) indicating that no order for the review of the investment will be made under subsection 25.3(1);
(b) a notice under paragraph 25.3(6)(b) indicating that no further action will be taken in respect of the investment; or
(c) a copy of an order made under section 25.4 authorizing the investment to be implemented.
Marginal note:Requirement to provide information
(3) The Minister may require the non-Canadian or any person or entity from which the Canadian business or the entity referred to in paragraph 25.1(c) is being acquired to provide, within the time and in the manner specified by the Minister, any prescribed information or any other information that the Minister considers necessary for the purposes of determining whether there are reasonable grounds to believe that an investment by a non-Canadian could be injurious to national security.
Marginal note:Ministerial action
(4) The Minister shall, 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.
Marginal note:Reviewable investments
25.3 (1) An investment is reviewable under this Part if the Minister, after consultation with the Minister of Public Safety and Emergency Preparedness, considers that the investment could be injurious to national security and the Governor in Council, on the recommendation of the Minister, makes an order within the prescribed period for the review of the investment.
Marginal note:Notice
(2) The Minister shall, without delay after the order has been made, send to the non-Canadian making the investment and to any person or entity from which the Canadian business or the entity referred to in paragraph 25.1(c) is being acquired, a notice indicating that an order for the review of the investment has been made and advising them of their right to make representations to the Minister.
Marginal note:Condition for investment
(3) If a non-Canadian has not implemented a proposed investment when they receive a notice under subsection (2), they shall not implement the investment unless they receive
(a) a notice under paragraph (6)(b) indicating that no further action will be taken in respect of the investment; or
(b) a copy of an order made under section 25.4 authorizing the investment to be implemented.
Marginal note:Representations
(4) If, after receipt of the notice referred to in subsection (2), the non-Canadian or other person or entity advises the Minister that they wish to make representations, the Minister shall afford them a reasonable opportunity to make representations in person or by a representative.
Marginal note:Requirement to provide information
(5) The Minister may require the non-Canadian or other person or entity to provide, within the time and in the manner specified by the Minister, any prescribed information or any other information that the Minister considers necessary for the purposes of the review.
Marginal note:Ministerial action
(6) After consultation with the Minister of Public Safety and Emergency Preparedness, the Minister shall, within the prescribed period, 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.
Marginal note: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.
Marginal note:Copy of order
(2) The Minister shall send a copy of the order to the non-Canadian or other person or entity to which it is directed without delay after it has been made.
Marginal note:Requirement to comply with order
(3) The non-Canadian or other person or entity to which the order is directed shall comply with the order.
Marginal note:Statutory Instruments Act does not apply
(4) The Statutory Instruments Act does not apply in respect of the order.
Marginal note:Information for determination
25.5 Non-Canadians or other persons or entities that are subject to an order made under section 25.4 shall submit any information in their possession relating to the investment that is required from time to time by the Director in order to permit the Director to determine whether they are complying with the order.
Marginal note:Decisions and orders are final
25.6 Decisions and orders of the Governor in Council, and decisions of the Minister, under this Part are final and binding and, except for judicial review under the Federal Courts Act, are not subject to appeal or to review by any court.
Marginal note: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:
Marginal note:Rules respecting control of entities
26. (1) Subject to subsections (2.1) to (2.2), for the purposes of this Act,
Marginal note:1993, c. 35, s. 4(2)
(2) Subsection 26(2) of the Act is replaced by the following:
Marginal note: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.
Marginal note: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:
Marginal note:Minister may determine
(2.11) For the purposes of Part IV.1, in the case of an entity that qualifies as a Canadian-controlled entity by virtue of subsection (1) or (2), the Minister may nevertheless determine that the entity is not a Canadian-controlled entity if, after considering any information and evidence submitted by or on behalf of the entity or otherwise made available to the Minister or the Director, the Minister is satisfied that the entity is controlled in fact by one or more non-Canadians.
Marginal note:Minister may declare
(2.2) If an entity referred to in subsection (2.1) or (2.11) has refused or neglected to provide, within a reasonable time, information that the Minister or the Director has requested and that the Minister considers necessary in order to make a decision under that subsection, the Minister may declare that the entity is not a Canadian-controlled entity.
Marginal note:1993, c. 35, s. 4(2)
(4) Subsection 26(2.4) of the Act is replaced by the following:
Marginal note: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):
Marginal note:Exception
(3.1) Subsection (3) does not apply to a corporation for the purposes of Part IV.1.
Marginal note: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:
Marginal note:Rules and presumptions respecting control of entities
(2) Subject to subsections (4) to (5), for the purposes of this Act,
Marginal note:1993, c. 35, s. 5(2)
(2) The portion of subsection 28(3) of the Act before paragraph (a) is replaced by the following:
Marginal note:Presumptions respecting acquisition of control
(3) Subject to subsections (4) to (5), for the purposes of this Act,
Marginal note: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:
Marginal note: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.
Marginal note: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.
Marginal note:1993, c. 35, s. 5(3)
(4) Subsection 28(7) of the Act is replaced by the following:
Marginal note: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.
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