Budget Implementation Act, 2009 (S.C. 2009, c. 2)

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

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

  Marginal note: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:

  • Marginal note: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):

  • Marginal note: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):

  • Marginal note: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.

  • Marginal note: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):

  • Marginal note: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):

  • Marginal note: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:

• 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:

  • Marginal note: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.

  • Marginal note: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:

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

  Marginal note: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:

  • Marginal note: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:

  • Marginal note: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.

  • Marginal note: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.

  • Marginal note: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.