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

Assented to 2009-03-12

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

    Marginal note:Exempt transactions
    • 10. (1) This Act, other than Part IV.1, does not apply in respect of

  • Marginal note: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:

    • Marginal note: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.

    • Marginal note: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.

Marginal note:1994, c. 47, s. 133
  •  (1) Subsection 14.1(1) of the Act is replaced by the following:

    Marginal note: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).

  • Marginal note:1994, c. 47, s. 133

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

    • Marginal note: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

  • Marginal note:1994, c. 47, s. 133

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

    • Marginal note: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.

    • Marginal note:Exception

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

  • Marginal note:1994, c. 47, s. 133

    (4) The definitions “financial institution” and “financial service” in subsection 14.1(6) of the Act are repealed.

Marginal note:1994, c. 47, s. 133

 Section 14.2 of the Act is replaced by the following:

Marginal note: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.

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

  • Marginal note: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.

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

  • Marginal note: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.

Marginal note:1995, c. 1,  par. 50(1)(e)

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

Marginal note: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.

  • Marginal note: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).

  • Marginal note: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.

  • Marginal note: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.

  • Marginal note: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.

  • Marginal note: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.

  • Marginal note: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.

  • Marginal note: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.

  • Marginal note: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.

Marginal note: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.

  • Marginal note: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.

  • Marginal note: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.

  • Marginal note: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.

Marginal note: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.

  • Marginal note: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.

  • Marginal note: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.

Marginal note: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).

 
Date modified: