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

Marginal note:New undertakings

25.31 After the Minister sends a notice referred to in paragraph 25.3(6)(c), the Minister may

• (a) accept new written undertakings if the Minister is satisfied, with the concurrence of the Minister of Public Safety and Emergency Preparedness, that the risks of injury to national security identified in the notice would continue to be addressed; or

• (b) release the non-Canadian or other person or entity from any undertakings, if the Minister is satisfied, with the concurrence of the Minister of Public Safety and Emergency Preparedness, that they are no longer necessary to address those risks.

Marginal note:Governor in Council’s powers

• 25.4 (1) On the referral of an investment under paragraph 25.3(6)(a) or subsection 25.3(7), the Governor in Council may, by order, within the prescribed period, take any measures in respect of the investment that he or she considers advisable to protect national security, including

  • (a) directing the non-Canadian not to implement the investment;

  • (b) authorizing the non-Canadian to make 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 to determine compliance

25.5 Non-Canadians or other persons or entities shall, within the time and in the manner specified by the Director, submit any information relating to the investment that is required by the Director in order to permit the Director to determine whether they are complying with

• (a) an order made under section 25.3 or 25.4; or

• (b) any written undertaking given to His Majesty in right of Canada and referred to in paragraph 25.3(6)(c) or 25.31(a).

Marginal note:Decisions and orders are final

25.6 Decisions and orders of the Governor in Council and of the Minister made 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:Closed proceeding on judicial review

• 25.7 (1) The following provisions apply to the judicial review of a decision or order made under this Part:

  • (a) [Repealed, 2024, c. 16, s. 109]

  • (b) [Repealed, 2024, c. 16, s. 109]

  • (c) [Repealed, 2024, c. 16, s. 109]

  • (d) [Repealed, 2024, c. 16, s. 109]

  • (e) [Repealed, 2024, c. 16, s. 109]

  • (f) if the judge determines that evidence or other information provided by the Minister is not relevant or if the Minister withdraws the evidence or other information, the decision of the judge shall not be based on that evidence or other information and the judge must return it to the Minister; and

  • (g) the judge shall ensure the confidentiality of all evidence and other information that the Minister withdraws.

• Marginal note:Definition of judge

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

Marginal note:Protection of information on appeal

25.8 Section 25.7 applies to any appeal of a decision made under that section and to any further appeal, with any necessary modifications.

Marginal note:Notification

25.9 Within 30 days after sending a notice under paragraph 25.3(6)(c) or a copy of the order under subsection 25.4(2), the Minister shall notify the National Security and Intelligence Committee of Parliamentarians and the National Security and Intelligence Review Agency of

• (a) the fact that a notice was sent under paragraph 25.3(6)(c) and of the identity of the non-Canadian and the Canadian business or entity referred to in paragraph 25.1(c); or

• (b) the fact that an order was made under subsection 25.4(1), of the identity of the non-Canadian and the Canadian business or entity referred to in paragraph 25.1(c) that is the subject of the order, and of whether the order

  • (i) directed the non-Canadian not to implement the investment that is the subject of the order,

  • (ii) authorized the investment or contained terms and conditions, or

  • (iii) required the non-Canadian to divest themselves of control of the Canadian business, or of their investment in the entity, that is the subject of the order.

PART VRules and Presumptions

Canadian Status Rules

Marginal note:Rules respecting control of entities

• 26 (1) Subject to subsections (2.1) to (2.2), (2.31) and (2.32), for the purposes of this Act,

  • (a) where one Canadian or two or more members of a voting group who are Canadians own a majority of the voting interests of an entity, it is a Canadian-controlled entity;

  • (b) where paragraph (a) does not apply and one non-Canadian or two or more members of a voting group who are non-Canadians own a majority of the voting interests of an entity, it is not a Canadian-controlled entity;

  • (c) where paragraphs (a) and (b) do not apply and a majority of the voting interests of an entity are owned by Canadians and it can be established that the entity is not controlled in fact through the ownership of its voting interests by one non-Canadian or by a voting group in which a member or members who are non-Canadians own one-half or more of those voting interests of the entity owned by the voting group, it is a Canadian-controlled entity; and

  • (d) where paragraphs (a) to (c) do not apply and less than a majority of the voting interests of an entity are owned by Canadians, it is presumed not to be a Canadian-controlled entity unless the contrary can be established by showing that

    • (i) the entity is controlled in fact through the ownership of its voting interests by one Canadian or by a voting group in which a member or members who are Canadians own a majority of those voting interests of the entity owned by the voting group, or

    • (ii) in the case of an entity that is a corporation or limited partnership, the entity is not controlled in fact through the ownership of its voting interests and at least two-thirds of the members of its board of directors or, in the case of a limited partnership, at least two-thirds of its general partners, are Canadians.

• Marginal note:Trusts

  (2) Subject to subsections (2.1) to (2.2), (2.31) and (2.32), if it can be established that a trust is not controlled in fact through the ownership of its voting interests, subsection (1) does not apply, and the trust is a Canadian-controlled entity if at least two-thirds of its trustees are Canadians.

• Marginal note:Minister may determine

  (2.1) Where an entity that carries on or proposes to carry on a specific type of business activity that is prescribed for the purposes of paragraph 15(a) qualifies as a Canadian-controlled entity by virtue of subsection (1) or (2), the Minister may nevertheless determine that the entity is not a Canadian-controlled entity where, after considering any information and evidence submitted by or on behalf of the entity or otherwise made available to the Minister or the Director, the Minister is satisfied that the entity is controlled in fact by one or more non-Canadians.

• Marginal note:Minister may determine

  (2.11) For the purposes of Part IV.1, in the case of an entity that qualifies as a Canadian-controlled entity by virtue of subsection (1) or (2), the Minister may nevertheless determine that the entity is not a Canadian-controlled entity if, after considering any information and evidence submitted by or on behalf of the entity or otherwise made available to the Minister or the Director, the Minister is satisfied that the entity is controlled in fact by one or more non-Canadians.

• Marginal note:Minister may declare

  (2.2) If an entity referred to in subsection (2.1) or (2.11) has refused or neglected to provide, within a reasonable time, information that the Minister or the Director has requested and that the Minister considers necessary in order to make a decision under that subsection, the Minister may declare that the entity is not a Canadian-controlled entity.

• Marginal note:Retroactivity possible

  (2.3) A determination made under subsection (2.1) or a declaration made under subsection (2.2) may be retroactive to such date, not earlier than June 19, 1992, as the Minister specifies, in which case the determination or declaration shall, for all purposes of this Act, be deemed to have been made on the date so specified.

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

  (2.31) If an entity qualifies as a Canadian-controlled entity by virtue of subsection (1) or (2), the Minister may nevertheless determine that the entity is not a Canadian-controlled entity if, after considering any information and evidence submitted by or on behalf of the entity or otherwise made available to the Minister or the Director, the Minister is satisfied that the entity is controlled in fact by one or more state-owned enterprises.

• Marginal note:Minister may declare

  (2.32) If an entity referred to in subsection (2.31) has refused or neglected to provide, within a reasonable time, information that the Minister or the Director has requested and that the Minister considers necessary in order to make a decision under that subsection, the Minister may declare that the entity is not a Canadian-controlled entity.

• Marginal note:Retroactivity possible

  (2.33) A determination made under subsection (2.31) or a declaration made under subsection (2.32) in respect of an entity referred to in subsection (2.31) may be retroactive to any date, not earlier than April 29, 2013, that the Minister specifies, in which case the determination or declaration shall, for all purposes of this Act, be deemed to have been made on the specified date.

• Marginal note:Entity to be informed

  (2.4) The Minister shall inform the entity concerned, in writing, of any determination made under any of subsections (2.1), (2.11) and (2.31) or declaration made under subsection (2.2) or (2.32), and of any date specified under subsection (2.3) or (2.33), without delay after the determination or declaration is made.

• Marginal note:Where corporation deemed to be Canadian

  (3) Where, after considering any information and evidence submitted by or on behalf of a corporation incorporated in Canada the voting shares of which are publicly traded in the open market, the Minister is satisfied that, with respect to the corporation,

  • (a) the majority of its voting shares are owned by Canadians,

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

  • (c) its chief executive officer and three of its four most highly remunerated officers are Canadian citizens ordinarily resident in Canada,

  • (d) its principal place of business is located in Canada,

  • (e) its board of directors supervises the management of its business and affairs on an autonomous basis without direction from any shareholder other than through the normal exercise of voting rights at meetings of its shareholders, and

  • (f) the circumstances described in paragraphs (a) to (e) have existed for not less than the twelve month period immediately preceding the submission of the information and evidence,

  the corporation shall be deemed to be a Canadian for the purpose of making any investment described in subsection 14(1), except an investment falling within a prescribed specific type of business activity that, in the opinion of the Governor in Council, is related to Canada’s cultural heritage or national identity, and the Minister shall so notify the corporation.

• Marginal note:Exception

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

• Marginal note:Proof

  (4) The Minister may accept, as proof of the circumstances described in paragraphs (3)(e) and (f), a written statement by the corporation to that effect, signed by all the members of its board of directors.

• Marginal note:Duration of presumption

  (5) If the material facts submitted by or on behalf of the corporation are accurate, the presumption under subsection (3) applies, from the date of the notification by the Minister referred to in that subsection, for so long as those material facts remain substantially unchanged or for two years from the date of that notification, whichever period is shorter.

• Marginal note:Equal ownership

  (6) Where two persons own equally all of the voting shares of a corporation and at least one of them is a non-Canadian, the corporation is not a Canadian-controlled entity.

Marginal note:Other rules

27 For the purposes of section 26,

• (a) where voting interests of an entity are owned by a partnership, a trust, other than a trust described in subsection 26(2), or a joint venture, those voting interests are deemed to be owned by the partners, beneficiaries or members of the joint venture, as the case may be, in the same proportion as their respective ownership interests in the assets of the partnership, trust or joint venture;

• (b) a trust described in subsection 26(2) is deemed to be a person for the purposes of the definition voting group in section 3;

• (c) any voting shares of a corporation that are issued to bearer are deemed to be owned by non-Canadians unless the contrary is established; and

• (d) where voting interests of an entity are held by individuals each of whom holds not more than one per cent of the total number of voting interests of the entity, the Minister shall, in the absence of evidence to the contrary, accept as evidence that those voting interests are owned by individuals who are Canadians a statement purporting to be signed by a person duly authorized by the entity in that behalf indicating that

  • (i) according to the records of the entity, the individuals who hold those voting interests have addresses in Canada, and

  • (ii) the person purporting to have signed the statement has no knowledge or reason to believe that those voting interests are owned by individuals who are non-Canadians.