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

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.

• Marginal note:Evidentiary privilege

  (2) Notwithstanding any other Act or law but subject to subsections (3) and (4), no minister of the Crown and no officer or employee of Her Majesty in right of Canada or a province shall be required, in connection with any legal proceedings, to give evidence relating to any information that is privileged under subsection (1) or to produce any statement or other writing containing such information.

• Marginal note:Communication or disclosure of information

  (3) Information that is privileged under subsection (1) may, on such terms and conditions and under such circumstances as the Minister deems appropriate,

  • (a) on request in writing to the Director by or on behalf of the Canadian or non-Canadian to which the information relates, be communicated or disclosed to any person or authority named in the request; or

  • (b) for any purpose relating to the administration or enforcement of this Act, be communicated or disclosed to a minister of the Crown in right of Canada or a province or to an officer or employee of Her Majesty in right of Canada or a province.

• Marginal note:Investigative bodies and foreign states

  (3.1) Information that is privileged under subsection (1) may be communicated or disclosed

  • (a) by the Minister to a prescribed investigative body, or an investigative body of a prescribed class, for the purposes of the administration and enforcement of Part IV.1 in the context of that body’s lawful investigations;

  • (b) by such an investigative body, for the purposes of its lawful investigations; and

  • (c) by the Minister, on such terms and conditions that the Minister deems appropriate, to a government of a foreign state or an agency thereof that is responsible for the review of foreign investments, for the purpose of national security reviews of foreign investments.

• Marginal note:Exceptions

  (4) Nothing in this section prohibits the communication or disclosure of

  • (a) information for the purposes of legal proceedings relating to the administration or enforcement of this Act;

  • (b) information contained in any 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;

  • (c) information to which the public has access;

  • (d) information the communication or disclosure of which has been authorized in writing by the Canadian or the non-Canadian to which the information relates;

  • (e) information contained in

    • (i) any receipt sent pursuant to subsection 13(1) relating to an investment that is not reviewable pursuant to subsection 13(3),

    • (ii) any notice sent under subsection 21(1) or (9), 22(2) or (4), 23(1) or (3), 25.2(1) or (4) or 25.3(2), paragraph 25.3(6)(b) or (c) or subsection 25.3(7), or

    • (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;

  • (e.1) information contained in reasons given by the Minister for sending a notice under subsection 23(1);

  • (e.2) the fact that an order was made under subsection 25.4(1) and whether the order

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

    • (ii) authorized the investment, including if it did so on 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;

  • (e.3) any other information contained in an order made under subsection 25.4(1);

  • (f) information to which a person is otherwise legally entitled;

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

  • (h) information relating to the acceptance of security under subsection 19(2).

• Marginal note:Information referred to in paragraph (4)(e.1), (g) or (h)

  (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)(e.1), (g) or (h), 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:For greater certainty

  (4.101) For greater certainty, when communicating or disclosing under paragraph (4)(e.2) the fact that an order was made under subsection 25.4(1), the Minister is not prohibited from communicating or disclosing the identity of the non-Canadian and of the Canadian business or entity referred to in paragraph 25.1(c) that is the subject of the order.

• Marginal note:Information referred to in paragraph (4)(e.3)

  (4.11) The Minister shall inform the Canadian or non-Canadian before communicating or disclosing any information under paragraph (4)(e.3), 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.

• Marginal note:Non-disclosure

  (5) No minister of the Crown and no officer or employee of Her Majesty in right of Canada or a province may be required, in connection with any legal proceedings or otherwise, to give evidence relating to or otherwise to communicate or disclose any information referred to in paragraph (4)(b) where, in the opinion of the Minister or a person designated by the Minister, the communication or disclosure of that information is not necessary for any purpose relating to the administration or enforcement of this Act and would prejudicially affect the non-Canadian that gave the written undertaking referred to in that paragraph in the conduct of the business affairs of that non-Canadian.