Alternative Title

Marginal note:Alternative title

1 This Act may be cited as the National Security Review of Investments Modernization Act.

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

• 2 (1) Section 11 of the Investment Canada Act is amended by striking out “and” at the end of paragraph (a), by adding “and” at the end of paragraph (b) and by adding the following after paragraph (b):

  • (c) an investment to acquire, in whole or in part, an entity carrying on all or any part of its operations in Canada and that has a place of operations in Canada, an individual or individuals in Canada who are employed or self-employed in connection with the entity’s operations or assets in Canada used in carrying on the entity’s operations, if

    • (i) the entity carries on a prescribed business activity,

    • (ii) the non-Canadian could, as a result of the investment, have access to, or direct the use of, material non-public technical information or material assets, and

    • (iii) the non-Canadian would have, as a result of the investment,

      • (A) the power to appoint or nominate any person who has the capacity to direct the business and affairs of the entity, such as a member of the board of directors or of senior management, a trustee of the entity or, in the case of a limited partnership, a general partner, or

      • (B) prescribed special rights with respect to the entity.

• (2) Section 11 of the Act is renumbered as subsection 11(1) and is amended by adding the following:

  • Marginal note:Regulations

    (2) The Governor in Council may make regulations defining “material assets” and “material non-public technical information” for the purposes of subparagraph (1)(c)(ii).

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

3 Section 12 of the Act is replaced by the following:

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

• 4 (1) Subparagraphs 13(1)(b)(i) and (ii) of the Act are replaced by the following:

  • (i) the investment is not reviewable under Part IV, or

  • (ii) unless the Director sends the non-Canadian a notice for review under section 15 within 45 days after the certified date referred to in paragraph (a) or within the prescribed period, the investment is not reviewable under Part IV.

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

  (2) Subsection 13(2) of the Act is replaced by the following:

  • Marginal note:Incomplete notice

    (2) If a notice given under section 12 is incomplete, the Director shall, within the prescribed period, send a notice to the non-Canadian, specifying the information required to complete the notice under section 12 and requesting that the information be provided to the Director in order to complete that notice.

• (3) The portion of subsection 13(3) of the Act before paragraph (a) is replaced by the following:

  • Marginal note:Where investment not reviewable

    (3) An investment in respect of which a receipt is sent under subsection (1) is not reviewable under Part IV if

• (4) Paragraph 13(3)(b) of the Act is replaced by the following:

  • (b) in a case where the receipt contains the advice referred to in subparagraph (1)(b)(ii), no notice for review is sent to the non-Canadian pursuant to section 15 within 45 days after the certified date referred to in paragraph (1)(a) or within the prescribed period.

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

• 5 (1) Subparagraph (d)(v) of the definition WTO investor in subsection 14.1(6) of the Act is replaced by the following:

  • (v) of which at least two-thirds of the members of its board of directors, or of which at least two-thirds of its general partners, as the case may be, are any combination of Canadians and WTO investors,

• Marginal note:1994, c. 47, s. 133

  (2) Subparagraph (e)(iv) of the definition WTO investor in subsection 14.1(6) of the Act is replaced by the following:

  • (iv) of which at least two-thirds of its trustees are any combination of Canadians and WTO investors, or

Marginal note:2017, c. 6, s. 80

• 6 (1) Subparagraph (d)(v) of the definition trade agreement investor in subsection 14.11(6) of the Act is replaced by the following:

  • (v) at least two-thirds of the members of its board of directors, or at least two-thirds of its general partners, as the case may be, are any combination of Canadians and trade agreement investors;

• Marginal note:2017, c. 6, s. 80

  (2) Subparagraph (e)(iv) of the definition trade agreement investor in subsection 14.11(6) of the Act is replaced by the following:

  • (iv) at least two-thirds of its trustees are any combination of Canadians and trade agreement investors; or

• 7 (1) The portion of section 15 of the Act before paragraph (a) is replaced by the following:

  Marginal note:Other reviewable investments

  15 An investment referred to in paragraph 11(1)(a) or (b) that is subject to notification under Part III and that would not otherwise be reviewable under this Part is reviewable under this Part if

• (1.1) The portion of paragraph 15(b) of the Act before subparagraph (i) is replaced by the following:

  • (b) within 45 days after the certified date referred to in paragraph 13(1)(a)

• (2) Section 15 of the Act is renumbered as subsection 15(1) and is amended by adding the following:

  • Marginal note:State-owned enterprise

    (2) Despite the limits set out in subsections 14(3), 14.1(1) and (1.1) and 14.11(1) and (2), an investment is reviewable under this Part if

    • (a) the non-Canadian making the investment is a state-owned enterprise or is controlled by a state-owned enterprise unless the non-Canadian is a trade agreement investor;

    • (b) the Governor in Council, on the recommendation of the Minister, is of the opinion that a review of the investment is in the public interest;

    • (c) the Governor in Council issues an order for the review within 45 days after the certified date referred to in paragraph 13(1)(a); and

    • (d) the Director sends the non-Canadian making the investment a notice for review.

8 Paragraphs 17(2)(b) and (c) of the Act are replaced by the following:

• 8.1 (1) Paragraph 20(c) of the Act is replaced by the following:

  • (c) the effect of the investment on productivity, industrial efficiency, technological development, product innovation and product variety in Canada, including, for greater certainty, the effect of the investment on any rights relating to intellectual property whose development has been funded, in whole or in part, by the Government of Canada;

• (2) Paragraph 20(e) of the Act is replaced by the following:

  • (e) the compatibility of the investment with national industrial, economic and cultural policies, taking into consideration industrial, economic and cultural policy objectives enunciated by the government or legislature of any province likely to be significantly affected by the investment, and including, for greater certainty, the effect of the investment on the use and protection of personal information about Canadians; and

Marginal note:2013, c. 33, s. 138

• 9 (1) Subsection 21(3) of the French version of the Act is replaced by the following:

  • Marginal note:Prolongation

    (3) Sous réserve des paragraphes (4) et (5), si, avant l’expiration du délai de quarante-cinq jours visé au paragraphe (1), l’avis prévu au paragraphe 25.2(1) est envoyé relativement à l’investissement et si l’arrêté visé au paragraphe 25.3(1) est pris relativement à celui-ci, le délai pendant lequel le ministre peut envoyer l’avis prévu au paragraphe (1) expire trente jours après l’expiration du délai réglementaire ou du délai supplémentaire visés aux paragraphes 25.3(6) ou (7), selon le cas, ou à l’expiration de tout délai supplémentaire sur lequel celui-ci et le demandeur s’entendent.

• Marginal note:2013, c. 33, s. 138

  (2) Subsection 21(4) of the Act is replaced by the following:

  • Marginal note:Extension

    (4) If, before the end 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 under paragraph 25.3(6)(b) or (c) is sent, the period during which the Minister may send the notice referred to in subsection (1) expires 30 days after the day on which the notice under that paragraph was sent or at the end of any further period that the Minister and the applicant agree on.

• Marginal note:2013, c. 33, s. 138

  (3) The portion of subsection 21(5) of the French version of the Act before paragraph (a) is replaced by the following:

  • Marginal note:Prolongation

    (5) Si, avant l’expiration du délai de quarante-cinq jours visé au paragraphe (1), l’avis prévu au paragraphe 25.2(1) est envoyé relativement à l’investissement et si l’arrêté visé au paragraphe 25.3(1) est pris relativement à celui-ci et que le ministre renvoie la question au gouverneur en conseil en application de l’alinéa 25.3(6)a) ou du paragraphe 25.3(7), le délai pendant lequel le ministre peut envoyer l’avis prévu au paragraphe (1) expire trente jours après celle des dates ci-après qui est antérieure à l’autre ou à l’expiration de tout délai supplémentaire sur lequel celui-ci et le demandeur s’entendent :

• Marginal note:2013, c. 33, s. 138

  (4) Subsection 21(6) of the French version of the Act is replaced by the following:

  • Marginal note:Prolongation

    (6) Sous réserve des paragraphes (7) et (8), si, avant l’expiration du délai de quarante-cinq jours visé au paragraphe (1), l’arrêté visé au paragraphe 25.3(1) est pris relativement à l’investissement, le délai pendant lequel le ministre peut envoyer l’avis prévu au paragraphe (1) expire trente jours après l’expiration du délai réglementaire ou du délai supplémentaire visés aux paragraphes 25.3(6) ou (7), selon le cas, ou à l’expiration de tout délai supplémentaire sur lequel celui-ci et le demandeur s’entendent.

• Marginal note:2013, c. 33, s. 138

  (5) Subsection 21(7) of the Act is replaced by the following:

  • Marginal note:Extension

    (7) If, before the end 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) or (c), the period during which the Minister may send the notice referred to in subsection (1) expires 30 days after the day on which the notice under that paragraph was sent or at the end of any further period that the Minister and the applicant agree on.

• Marginal note:2013, c. 33, s. 138

  (6) The portion of subsection 21(8) of the French version of the Act before paragraph (a) is replaced by the following:

  • Marginal note:Prolongation

    (8) Si, avant l’expiration du délai de quarante-cinq jours visé au paragraphe (1), l’arrêté visé au paragraphe 25.3(1) est pris relativement à l’investissement et si le ministre renvoie la question au gouverneur en conseil en application de l’alinéa 25.3(6)a) ou du paragraphe 25.3(7), le délai pendant lequel le ministre peut envoyer l’avis prévu au paragraphe (1) expire trente jours après celle des dates ci-après qui est antérieure à l’autre ou à l’expiration de tout délai supplémentaire sur lequel celui-ci et le demandeur s’entendent :

Marginal note:2020, c. 1, s. 111

• 10 (1) Subparagraph (d)(v) of the definition CUSMA investor in subsection 24(4) of the Act is replaced by the following:

  • (v) of which at least two-thirds of the members of its board of directors, or of which at least two-thirds of its general partners, as the case may be, are any combination of Canadians and CUSMA investors;

• Marginal note:2020, c. 1, s. 111

  (2) Subparagraph (e)(iv) of the definition CUSMA investor in subsection 24(4) of the Act is replaced by the following:

  • (iv) of which at least two-thirds of its trustees are any combination of Canadians and CUSMA investors; or

Marginal note:2009, c. 2, s. 453

11 The heading of Part IV.1 of the Act is replaced by the following:

Marginal note:2009, c. 2, s. 453

• 12 (1) Paragraph 25.1(b) of the Act is replaced by the following:

  • (b) to acquire control of a Canadian business in any manner described in section 28;

  • (b.1) if the non-Canadian is a state-owned enterprise, to acquire any of the assets of a Canadian business; or

• (2) Section 25.1 of the Act is renumbered as subsection 25.1(1) and is amended by adding the following:

  • Marginal note:For greater certainty

    (2) For greater certainty, paragraph (1)(c) includes an investment to acquire, in whole or in part, the assets of an entity referred to in that paragraph.

13 The Act is amended by adding the following after section 25.1:

Marginal note:2009, c. 2, s. 453

• 14 (1) Subsection 25.2(1) of the Act is replaced by the following:

  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 further review of the investment may be made under subsection 25.3(1).

  • Marginal note:Act of corruption

    (1.1) For the purposes of subsection (1), the fact that a non-Canadian has previously been convicted, within or outside Canada, for an offence involving an act of corruption constitutes, by itself, reasonable grounds.

• Marginal note:2009, c. 2, s. 453

  (2) Paragraphs 25.2(2)(a) and (b) of the Act are replaced by the following:

  • (a) a notice under subsection (4);

  • (b) a notice under paragraph 25.3(6)(b) or (c); or

• Marginal note:2009, c. 2, s. 453; 2013, c. 33, s. 140

  (3) Subsections 25.2(3) and (4) of the Act are replaced by the following:

  • Marginal note:Notice

    (4) If the Minister, after the consultation referred to in subsection 25.3(1), does not consider that the investment could be injurious to national security, the Minister shall, within the prescribed period, send to the non-Canadian a notice indicating that consideration of the investment is complete and that no order will be made under that subsection.

Marginal note:2009, c. 2, s. 453

• 15 (1) Subsections 25.3(1) and (2) of the Act are replaced by the following:

  Marginal note:Order — further review

  • 25.3 (1) If the Minister, after consultation with the Minister of Public Safety and Emergency Preparedness, considers that an investment could be injurious to national security, the Minister shall make an order within the prescribed period for the further review of the investment.

  • Marginal note:Interim conditions

    (1.1) The Minister shall, by order, impose interim conditions in respect of the investment that are applicable until no later than when consideration of the investment is complete, or amend such conditions, if the Minister, after consultation with the Minister of Public Safety and Emergency Preparedness, is satisfied that it is necessary for the purpose of preventing injury to national security that could arise during that review, provided that the imposition of interim conditions does not introduce significant new risks of injury to national security. The Minister shall also delete a condition if the Minister, after such consultation, is satisfied that it is no longer necessary for that purpose.

  • Marginal note:Statutory Instruments Act does not apply

    (1.2) The Statutory Instruments Act does not apply in respect of an order made under this section.

  • Marginal note:Notice

    (2) The Minister shall, without delay after an order has been made under this section, 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 the order has been made and advising them of their right to make representations and to submit undertakings to the Minister. A copy of the order is to accompany the notice.

• Marginal note:2009, c. 2, s. 453

  (2) Paragraph 25.3(3)(a) of the Act is replaced by the following:

  • (a) a notice under paragraph (6)(b) or (c);

• Marginal note:2009, c. 2, s. 453

  (3) Subsections 25.3(4) and (5) of the Act are replaced by the following:

  • Marginal note:Representations and undertakings

    (4) After receipt of the notice referred to in subsection (2), the non-Canadian or other person or entity may make representations and submit written undertakings, within the time and in the manner specified in the notice.

• Marginal note:2009, c. 2, s. 453; 2013, c. 33, s. 141

  (4) Subsections 25.3(6) and (7) of the Act are replaced by the following:

  • Marginal note:Ministerial action

    (6) The Minister shall, within the prescribed period,

    • (a) after consultation with the Minister of Public Safety and Emergency Preparedness, 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;

    • (b) after consultation with the Minister of Public Safety and Emergency Preparedness, send to the non-Canadian a notice indicating that consideration of the investment is complete, if the Minister is satisfied that the investment would not be injurious to national security; or

    • (c) send to the non-Canadian a notice indicating that consideration of the investment is complete, if the Minister is satisfied, with the concurrence of the Minister of Public Safety and Emergency Preparedness, that the investment would not be injurious to national security because of the undertakings that are given to His Majesty in right of Canada.

  • Marginal note:Extension

    (7) If the Minister is unable to complete the consideration of an investment within the prescribed period referred to in subsection (6), the Minister shall, within that period, send a notice to that effect to the non-Canadian. The Minister then has until the end of the period prescribed for this subsection, or any further period that the Minister and the non-Canadian agree on, to take the applicable measures described in paragraph (6)(a), (b) or (c).

• (5) The Act is amended by adding the following after section 25.3:

  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:2009, c. 2, s. 453

16 Paragraph 25.4(1)(b) of the Act is replaced by the following:

Marginal note:2009, c. 2, s. 453

17 Sections 25.5 and 25.6 of the Act are replaced by the following:

• 18 (1) Subparagraph 26(1)(d)(ii) of the Act is replaced by the following:

  • (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:2013, c. 33, s. 143(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), (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.

• (3) Paragraph 26(3)(b) of the Act is replaced by the following:

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

Marginal note:2009, c. 2, s. 457(3)

• 19 (1) Subsection 36(3.1) of the Act is replaced by the following:

  • 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.

• (2) Subparagraph 36(4)(e)(ii) of the Act is replaced by the following:

  • (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

• (3) Subparagraph 36(4)(e.2)(ii) of the Act is replaced by the following:

  • (ii) authorized the investment, including if it did so on terms and conditions, or

• (4) Section 36 of the Act is amended by adding the following after subsection (4.1):

  • 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.

19.1 Section 38.1 of the Act is renumbered as subsection 38.1(1) and is amended by adding the following:

• 20 (1) Paragraph 39(1)(a) of the Act is replaced by the following:

  • (a) has failed to give notice in accordance with section 12 or file an application in accordance with section 17,

• Marginal note:2009, c. 2, s. 460(1)

  (2) Paragraph 39(1)(b) of the Act is replaced by the following:

  • (b) has implemented an investment the implementation of which is prohibited by section 12, 16, 24, 25.2 or 25.3,

• Marginal note:2009, c. 2, s. 460(2)

  (3) Paragraphs 39(1)(d.1) and (d.2) of the Act are replaced by the following:

  • (d.1) has failed to comply with a written undertaking given to His Majesty in right of Canada and referred to in paragraph 25.3(6)(c) or 25.31(a),

  • (d.2) has failed to comply with an order made under section 25.3 or 25.4,

• Marginal note:2009, c. 2, s. 460(3)

  (4) Subsection 39(2) of the Act is replaced by the following:

  • Marginal note:Ministerial demand

    (2) The Minister may send a demand to a 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 if the Minister believes that the person or the entity has failed to comply with

    • (a) a requirement to provide information under section 25.12 or 25.5;

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

    • (c) an order made under section 25.3 or 25.4.

Marginal note:2009, c. 2, s. 462(1)

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

  Marginal note:Application for court order

  • 40 (1) An application on behalf of the Minister may be made to a superior court for an order under subsection (2) or (2.1) if

    • (a) a non-Canadian fails to give notice in accordance with paragraph 12(1)(a) or to file, with respect to a Canadian business that carries on a prescribed business activity, an application in accordance with section 17; or

    • (b) a non-Canadian or any other person or entity fails to comply with a demand under section 39.

• Marginal note:2009, c. 2, s. 462(2)

  (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 non-Canadian has failed to give the notice or file the application referred to in paragraph (1)(a), or 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 that, in its opinion, the circumstances require, including an order

• Marginal note:2009, c. 2, s. 462(4)

  (3) Paragraphs 40(2)(c.1) and (d) of the Act are replaced by the following:

  • (c.1) directing the non-Canadian to comply with a written undertaking given to His Majesty in right of Canada and referred to in paragraph 25.3(6)(c) or 25.31(a);

  • (c.2) directing the non-Canadian to comply with an order made under section 25.3;

  • (d) against the non-Canadian imposing a penalty not exceeding

    • (i) in the case of a failure to give notice in accordance with paragraph 12(1)(a) or to file, with respect to a Canadian business that carries on a prescribed business activity, an application in accordance with section 17, the greater of $500,000 and any prescribed amount, or

    • (ii) in the case of any other contravention of the provisions of this Act or the regulations, the greater of $25,000 and any prescribed amount for each day of the contravention;

• Marginal note:2009, c. 2, s. 462(6)

  (4) Subsection 40(2.1) of the Act is 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 an order against the person or entity imposing a penalty not exceeding the greater of $25,000 and any prescribed amount for each day of the contravention.

Transitional Provisions

Marginal note:Definitions

• 22 (1) The following definitions apply in this section.

  former Act

  former Act means the Investment Canada Act as it read immediately before the day on which section 15 comes into force. (ancienne loi)

  new Act

  new Act means the Investment Canada Act as it reads on the day on which section 15 comes into force. (nouvelle loi)

• Marginal note:Review continued under new Act

  (2) Subject to subsection (3), on or after the day on which section 15 comes into force, the review of any investment under Part IV.1 of the former Act in respect of which a measure has not been taken under subsection 25.3(6) of the former Act shall be taken up and continued in accordance with the new Act.

• Marginal note:Subsections 25.3(2) and (6)

  (3) If a notice has been sent under subsection 25.3(2) of the former Act in respect of the investment before the day on which section 15 comes into force,

  • (a) the Minister shall, without delay after that day, 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) of the new Act is being acquired, a notice referred to in subsection 25.3(2) of the new Act; and

  • (b) the prescribed period for the purposes of subsection 25.3(6) of the new Act is the period beginning on the day on which the order under subsection 25.3(1) of the former Act is made and ending 45 days after that day.

Coming into Force

Marginal note:Order in council

23 The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.