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

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).

Marginal note:Divestiture

• 24 (1) On receipt of a notice under paragraph 23(3)(b), the applicant shall not implement the investment to which the notice relates or, if the investment has been implemented, shall divest himself of control of the Canadian business that is the subject of the investment.

• (1.1) to (1.3) [Repealed, 1994, c. 47, s. 134]

• Marginal note:Authority to purchase cultural business

  (2) Notwithstanding section 90 of the Financial Administration Act, where a CUSMA investor is, pursuant to a review under this Part, required to divest control of a cultural business, as defined in subsection 14.1(6), that has been acquired in the manner described in subparagraph 28(1)(d)(ii), where the circumstances described in subsection 14(2) do not apply, Her Majesty in right of Canada may acquire all or part of the cultural business and dispose of all or any part of the cultural business so acquired.

• Marginal note:Designation of agent

  (3) For the purposes of subsection (2), the Governor in Council may, on the recommendation of the Minister and the Treasury Board, by order, designate any Minister of the Crown in right of Canada, or any Crown corporation within the meaning of the Financial Administration Act, to act as agent on behalf of Her Majesty with full authority to do all things necessary, subject to such terms and conditions not inconsistent with the obligations of the parties to the Agreement under Article 32.6 of the Agreement, as the Governor in Council considers appropriate.

• Marginal note:Definitions

  (4) The following definitions apply in this section.

  Agreement

  Agreement has the same meaning as in section 2 of the Canada–United States–Mexico Agreement Implementation Act. (Accord)

  controlled by a CUSMA investor

  controlled by a CUSMA 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 CUSMA investor through the ownership of voting interests; or

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

  CUSMA country

  CUSMA country means a country that is a party to the Agreement. (pays ACEUM)

  CUSMA investor

  CUSMA investor means

  • (a) an individual, other than a Canadian, who is a national as defined in Article 1.5 of the Agreement;

  • (b) a government of a CUSMA country, 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 CUSMA investor-controlled entity, as determined in accordance with subsection (5);

  • (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 CUSMA investor within the meaning of paragraph (c),

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

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

    • (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;

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

  • (f) any other form of business organization specified by the regulations that is controlled by a CUSMA investor. (investisseur ACEUM)

• Marginal note:Interpretation

  (5) For the purposes only of determining whether an entity is a CUSMA investor-controlled entity under paragraph (c) of the definition CUSMA investor in subsection (4),

  • (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 “CUSMA investor” or “CUSMA 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 CUSMA investor,” or “non-Canadians, other than CUSMA 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 CUSMA investors”,

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

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

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

Marginal note:Information for monitoring

25 A non-Canadian that implements an investment in accordance with this Part shall submit such information in his possession relating to the investment as is required from time to time by the Director in order to permit the Director to determine whether the investment is being carried out in accordance with the application filed under section 17 and any representations made or undertakings given in relation to the investment.

PART IV.1Review of Investments — Injurious to National Security

Marginal note:Application

25.1 This Part applies in respect of an investment, implemented or proposed, by a non-Canadian

• (a) to establish a new Canadian business;

• (b) to acquire control of a Canadian business in any manner described in subsection 28(1); or

• (c) to acquire, in whole or in part, or to establish an entity carrying on all or any part of its operations in Canada if the entity has

  • (i) a place of operations in Canada,

  • (ii) an individual or individuals in Canada who are employed or self-employed in connection with the entity’s operations, or

  • (iii) assets in Canada used in carrying on the entity’s operations.

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

• Marginal note:Condition for investment

  (2) If a non-Canadian has not implemented a proposed investment when they receive a notice under subsection (1), they shall not implement the investment unless they receive

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

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

  • (c) a copy of an order made under section 25.4 authorizing the investment to be implemented.

• (3) [Repealed, 2024, c. 4, s. 14]

• 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: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:Condition for investment

  (3) If a non-Canadian has not implemented a proposed investment when they receive a notice under subsection (2), they shall not implement the investment unless they receive

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

  • (b) a copy of an order made under section 25.4 authorizing the investment to be implemented.

• 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.

• (5) [Repealed, 2024, c. 4, s. 15]

• 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).