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

Full Document:  

Act current to 2022-06-20 and last amended on 2021-04-01. Previous Versions

PART IIINotification

Marginal note:Investments subject to notification

 The following investments by non-Canadians are subject to notification under this Part:

  • (a) an investment to establish a new Canadian business; and

  • (b) an investment to acquire control of a Canadian business in any manner described in subsection 28(1), unless the investment is reviewable pursuant to section 14.

Marginal note:Notice of investment

 Where an investment is subject to notification under this Part, the non-Canadian making the investment shall, at any time prior to the implementation of the investment or within thirty days thereafter, in the manner prescribed, give notice of the investment to the Director providing such information as is prescribed.

  • R.S., 1985, c. 28 (1st Supp.), s. 12
  • 1995, c. 1, s. 50

Marginal note:Receipt

  •  (1) Where a notice given under section 12 provides all the required information or reasons for the inability to provide any part of the required information, or where the notice is completed pursuant to subsection (2), the Director shall forthwith send a receipt to the non-Canadian that gave the notice

    • (a) certifying the date on which

      • (i) the complete notice given under section 12 was received by the Director, or

      • (ii) the information required to complete the notice was received by the Director pursuant to subsection (2); and

    • (b) advising the non-Canadian that

      • (i) the investment is not reviewable, or

      • (ii) unless the Director sends the non-Canadian a notice for review pursuant to section 15 within twenty-one days after the certified date referred to in paragraph (a), the investment is not reviewable.

  • Marginal note:Incomplete notice

    (2) Where a notice given under section 12 is incomplete, the Director shall forthwith send a notice to the non-Canadian that gave the notice under that section, 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.

  • Marginal note:Where investment not reviewable

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

    • (a) the information provided by the non-Canadian and relied on by the Director in sending the receipt is accurate; and

    • (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 twenty-one days after the certified date referred to in paragraph (1)(a).

  • R.S., 1985, c. 28 (1st Supp.), s. 13
  • 1995, c. 1, s. 50

PART IVReview

Marginal note:Reviewable investments

  •  (1) The following investments by non-Canadians are reviewable under this Part:

    • (a) an investment to acquire control of a Canadian business in any manner described in paragraph 28(1)(a), (b) or (c), where the limits set out in subsection (3) apply;

    • (b) an investment to acquire control of a Canadian business in the manner described in subparagraph 28(1)(d)(i), where the limits set out in subsection (3) apply;

    • (c) an investment to acquire control of a Canadian business in the manner described in subparagraph 28(1)(d)(ii), where the circumstances described in subsection (2) and the limits set out in subsection (3) apply; and

    • (d) an investment to acquire control of a Canadian business in the manner described in subparagraph 28(1)(d)(ii), where the circumstances described in subsection (2) do not apply and the limits set out in subsection (4) apply.

  • Marginal note:Circumstances

    (2) The circumstances referred to in paragraphs (1)(c) and (d) are that the value, calculated in the manner prescribed, of the assets of the entity carrying on the Canadian business, and of all other entities in Canada, the control of which is acquired, directly or indirectly, amounts to more than fifty per cent of the value, calculated in the manner prescribed, of the assets of all entities the control of which is acquired, directly or indirectly, in the transaction of which the acquisition of control of the Canadian business forms a part.

  • Marginal note:Limits

    (3) An investment described in paragraph (1)(a), (b) or (c) is reviewable under this Part where the value, calculated in the manner prescribed, of

    • (a) the assets acquired, in the case where control of a Canadian business is acquired in the manner described in paragraph 28(1)(c), or

    • (b) the assets of the entity carrying on the Canadian business, and of all other entities in Canada, the control of which is acquired, directly or indirectly, in the case where control of a Canadian business is acquired in the manner described in paragraph 28(1)(a), (b) or (d),

    is five million dollars or more.

  • Marginal note:Limits

    (4) An investment described in paragraph (1)(d) is reviewable under this Part where the value, calculated in the manner prescribed, of the assets of the entity carrying on the Canadian business, and of all other entities in Canada, the control of which is acquired, directly or indirectly, is fifty million dollars or more.

 [Repealed, 1994, c. 47, s. 132]

 [Repealed, 1994, c. 47, s. 133]

Marginal note:Limits for WTO investors

  •  (1) Despite the limits set out in subsection 14(3), but subject to subsection (1.1), 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 — by 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) to (c) [Repealed, 2017, c. 20, s. 192]

    • (d) for an investment implemented at any time in the period that begins on the day on which this paragraph comes into force and that ends on December 31 of the following year, $1,000,000,000; and

    • (e) for an investment implemented 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:Limits for WTO investors that are state-owned enterprises

    (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 that is a state-owned enterprise 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 — by a state-owned enterprise, other than a WTO investor, is reviewable under section 14 only if the 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 the applicable amount determined under subsection (2).

  • Marginal note:Amount

    (2) The amount for any year for the purposes of paragraph (1)(e) and subsection (1.1) 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 following formula:

    (Current Nominal GDP at Market Prices / Previous Year Nominal) × amount determined for previous year

    where

    • “Current Nominal GDP at Market Prices” means the average of the Nominal Gross Domestic Products at market prices for the most recent four consecutive quarters; and

    • “Previous Year Nominal GDP at Market Prices” means the average of the Nominal Gross Domestic Products at market prices for the four consecutive quarters for the comparable period in the year preceding the year used in calculating the Current Nominal GDP at Market Prices.

  • Marginal note:Publication in Canada Gazette

    (3) As soon as possible after determining the amount for any particular year, the Minister shall publish the amount in the Canada Gazette.

  • 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:Definitions

    (6) In this section and section 14.2,

    controlled by a WTO investor

    controlled by a WTO investor, with respect to a Canadian business, means, notwithstanding subsection 28(2),

    • (a) the ultimate direct or indirect control in fact of the Canadian business by a WTO investor through the ownership of voting interests, or

    • (b) the ownership by a WTO investor of all or substantially all of the assets used in carrying on the Canadian business; (sous le contrôle d’un investisseur OMC)

    cultural business

    cultural business means a Canadian business that carries on any of the following activities, namely,

    • (a) the publication, distribution or sale of books, magazines, periodicals or newspapers in print or machine readable form, other than the sole activity of printing or typesetting of books, magazines, periodicals or newspapers,

    • (b) the production, distribution, sale or exhibition of film or video recordings,

    • (c) the production, distribution, sale or exhibition of audio or video music recordings,

    • (d) the publication, distribution or sale of music in print or machine readable form, or

    • (e) radio communication in which the transmissions are intended for direct reception by the general public, any radio, television and cable television broadcasting undertakings and any satellite programming and broadcast network services; (entreprise culturelle)

    financial institution

    financial institution[Repealed, 2009, c. 2, s. 448]

    financial service

    financial service[Repealed, 2009, c. 2, s. 448]

    WTO Agreement

    WTO Agreement has the meaning given to the word “Agreement” by subsection 2(1) of the World Trade Organization Agreement Implementation Act; (Accord sur l’OMC)

    WTO investor

    WTO investor means

    • (a) an individual, other than a Canadian, who is a national of a WTO Member or who has the right of permanent residence in relation to that WTO Member,

    • (b) a government of a WTO Member, whether federal, state or local, or an agency thereof,

    • (c) an entity that is not a Canadian-controlled entity, as determined pursuant to subsection 26(1) or (2), and that is a WTO investor-controlled entity, as determined in accordance with subsection (7),

    • (d) a corporation or limited partnership

      • (i) that is not a Canadian-controlled entity, as determined pursuant to subsection 26(1),

      • (ii) that is not a WTO investor within the meaning of paragraph (c),

      • (iii) of which less than a majority of its voting interests are owned by WTO investors,

      • (iv) that is not controlled in fact through the ownership of its voting interests, and

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

    • (e) a trust

      • (i) that is not a Canadian-controlled entity, as determined pursuant to subsection 26(1) or (2),

      • (ii) that is not a WTO investor within the meaning of paragraph (c),

      • (iii) that is not controlled in fact through the ownership of its voting interests, and

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

    • (f) any other form of business organization specified by the regulations that is controlled by a WTO investor; (investisseur OMC)

    WTO Member

    WTO Member means a Member of the World Trade Organization established by Article I of the WTO Agreement. (membre de l’OMC)

  • Marginal note:Interpretation

    (7) For the purposes only of determining whether an entity is a “WTO investor-controlled entity” under paragraph (c) of the definition WTO investor in subsection (6),

    • (a) subsections 26(1) and (2) and section 27 apply and, for that purpose,

      • (i) every reference in those provisions to “Canadian” or “Canadians” shall be read and construed as a reference to “WTO investor” or “WTO investors”, respectively,

      • (ii) every reference in those provisions to “non-Canadian” or “non-Canadians” shall be read and construed as a reference to “non-Canadian, other than a WTO investor,” or “non-Canadians, other than WTO investors,” respectively, except for the reference to “non-Canadians” in subparagraph 27(d)(ii), which shall be read and construed as a reference to “not WTO investors”,

      • (iii) every reference in those provisions to “Canadian-controlled” shall be read and construed as a reference to “WTO investor-controlled”, and

      • (iv) the reference in subparagraph 27(d)(i) to “Canada” shall be read and construed as a reference to “a WTO Member”; and

    • (b) where two persons, one being a Canadian and the other being a WTO investor, own equally all of the voting shares of a corporation, the corporation is deemed to be WTO investor-controlled.

  • 1988, c. 65, s. 135
  • 1993, c. 35, s. 3
  • 1994, c. 47, s. 133
  • 2009, c. 2, s. 448
  • 2013, c. 33, s. 137
  • 2017, c. 20, s. 192

Marginal note:Limits for trade agreement investors — paragraph 14(1)(a) or (b)

  •  (1) Despite the limits set out in subsections 14(3) and 14.1(1), an investment described in paragraph 14(1)(a) or (b) by a trade agreement investor, other than a state-owned enterprise, or — if the Canadian business that is the subject of the investment is, immediately prior to the implementation of the investment, controlled by a trade agreement investor — by a non-Canadian other than a trade agreement investor and other than a state-owned enterprise, is reviewable under section 14 only if the enterprise value, calculated in the prescribed manner, 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 implemented at any time in the period that begins on the day on which this paragraph comes into force and that ends on December 31 of the following calendar year, $1,500,000,000, and

    • (b) for an investment implemented in any subsequent calendar year, the amount determined in respect of that calendar year under subsection (3).

  • Marginal note:Limits for trade agreement investors — paragraph 14(1)(c) or (d)

    (2) Despite the limits set out in subsections 14(3) and (4), an investment described in paragraph 14(1)(c) or (d) by an investor described in any of the following paragraphs is reviewable under section 14 only if the enterprise value, calculated in the prescribed manner, of the assets described in paragraph 14(3)(b) or subsection 14(4), as the case may be, is equal to or greater than the applicable amount referred to under paragaph (1)(a) or (b):

    • (a) a trade agreement investor that is neither a WTO investor as defined in subsection 14.1(6) nor a state-owned enterprise; or

    • (b) a non-Canadian that is not a trade agreement investor, a WTO investor as defined in subsection 14.1(6) or a state-owned enterprise, if the Canadian business that is the subject of the investment is, immediately prior to the implementation of the investment, controlled by a trade agreement investor.

  • Marginal note:Amount

    (3) The amount for any year for the purposes of paragraph (1)(b) 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 following formula:

    (Current Nominal GDP at Market Prices / Previous Year Nominal GDP at Market Prices) × amount determined for previous year

    where

    • (a) the Current Nominal GDP at Market Prices is the average of the Nominal Gross Domestic Products at market prices for the most recent four consecutive quarters; and

    • (b) the Previous Year Nominal GDP at Market Prices is the average of the Nominal Gross Domestic Products at market prices for the four consecutive quarters for the comparable period in the year preceding the year used in calculating the Current Nominal GDP at Market Prices.

  • Marginal note:Publication in Canada Gazette

    (4) As soon as possible after determining the amount for any particular year, the Minister shall publish the amount in the Canada Gazette.

  • 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, as defined in subsection 14.1(6).

  • Marginal note:Definitions

    (6) The following definitions apply in this section.

    controlled by a trade agreement investor

    controlled by a trade agreement investor, with respect to a Canadian business, means, despite subsection 28(2),

    • (a) the ultimate direct or indirect control in fact of the Canadian business by a trade agreement investor through the ownership of voting interests; or

    • (b) the ownership by a trade agreement investor of all or substantially all of the assets used in carrying on the Canadian business. (sous le contrôle d’un investisseur (traité commercial))

    trade agreement country

    trade agreement country means a country other than Canada that is a party either to an Agreement described in subparagraph (a)(i) or (i.1) of the definition trade agreement investor in this subsection or to a trade agreement listed in column 1 of the schedule. (pays (traité commercial))

    trade agreement investor

    trade agreement investor means

    • (a) an individual, other than a Canadian, who is

    • (b) the government of a trade agreement country, whether federal, state or local, or an agency of such a government;

    • (c) an entity that is not a Canadian-controlled entity, as determined under subsection 26(1) or (2), and that is a trade agreement investor-controlled entity, as determined in accordance with subsection (7);

    • (d) a corporation or limited partnership that meets the following criteria:

      • (i) it is not a Canadian-controlled entity, as determined under subsection 26(1),

      • (ii) it is not an entity described in paragraph (c),

      • (iii) less than a majority of its voting interests are owned by trade agreement investors,

      • (iv) it is not controlled in fact through the ownership of its voting interests, and

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

    • (e) a trust that meets the following criteria:

      • (i) it is not a Canadian-controlled entity, as determined under subsection 26(1) or (2),

      • (ii) it is not an entity described in paragraph (c),

      • (iii) it is not controlled in fact through the ownership of its voting interests, and

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

    • (f) any other form of business organization specified by the regulations that is controlled by a trade agreement investor. (investisseur (traité commercial))

  • Marginal note:Interpretation

    (7) For the purpose only of determining whether an entity is a trade agreement investor-controlled entity under paragraph (c) of the definition trade agreement investor in subsection (6),

    • (a) subsections 26(1) and (2) and section 27 apply and, for that purpose,

      • (i) every reference in those provisions to “Canadian” or “Canadians” shall be read and construed as a reference to “trade agreement investor” or “trade agreement investors”, respectively,

      • (ii) every reference in those provisions to “non-Canadian” or “non-Canadians” shall be read and construed as a reference to “non-Canadian other than a trade agreement investor,” or “non-Canadians, other than trade agreement investors,” respectively, except for the reference to “non-Canadians” in subparagraph 27(d)(ii), which shall be read and construed as a reference to “not trade agreement investors”,

      • (iii) every reference in those provisions to “Canadian-controlled” shall be read and construed as a reference to “trade agreement investor-controlled”, and

      • (iv) the reference in subparagraph 27(d)(i) to “Canada” shall be read and construed as a reference to “a trade agreement country”; and

    • (b) if two persons, one being a Canadian and the other being a trade agreement investor, own equally all of the voting shares of a corporation, the corporation is deemed to be trade agreement investor-controlled.

 
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