An Act to amend the Investment Canada Act (S.C. 2024, c. 4)
Full Document:
- HTMLFull Document: An Act to amend the Investment Canada Act (Accessibility Buttons available) |
- PDFFull Document: An Act to amend the Investment Canada Act [306 KB]
Assented to 2024-03-22
R.S., c. 28 (1st Supp.)Investment Canada Act (continued)
13 The Act is amended by adding the following after section 25.1:
Marginal note:Beginning of review
25.11 The review of an investment under this Part begins on the day on which it first comes to the attention of the Minister.
Marginal note:Requirement to provide information
25.12 The Minister may require the non-Canadian or other person or entity from which the Canadian business or the entity referred to in paragraph 25.1(c) is being acquired to provide to the Minister, within the time and in the manner specified by the Minister, any prescribed information or any other information that the Minister considers necessary for the purposes of the review.
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:
(b) authorizing the non-Canadian to make the investment on the terms and conditions contained in the order; or
Marginal note:2009, c. 2, s. 453
17 Sections 25.5 and 25.6 of the Act are replaced by the following:
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) at any time during a proceeding, the judge shall, on the request of the Minister, hear submissions on evidence or other information in the absence of the public and of the applicant and their counsel if, in the judge’s opinion, the disclosure of the evidence or other information could be injurious to international relations, national defence or national security or could endanger the safety of any person;
(b) the judge shall ensure the confidentiality of the evidence and other information provided by the Minister if, in the judge’s opinion, its disclosure would be injurious to international relations, national defence or national security or would endanger the safety of any person;
(c) throughout the proceeding, the judge shall ensure that the applicant is provided with a summary of the evidence and other information available to the judge that enables the applicant to be reasonably informed of the Government of Canada’s case but that does not include anything that, in the judge’s opinion, would be injurious to international relations, national defence or national security or would endanger the safety of any person if disclosed;
(d) the judge shall provide the applicant and the Minister with an opportunity to be heard;
(e) the decision of the judge may be based on evidence or other information available to the judge even if a summary of that evidence or other information has not been provided to the applicant;
(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.
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:
Marginal note:Required information
(2) The report shall include information on the exercise of ministerial duties and powers under Part IV.1.
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.
- Date modified: