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

Acquisition of Control Rules

Marginal note:Manner of acquiring control

• 28 (1) For the purposes of this Act, a non-Canadian acquires control of a Canadian business only by

  • (a) the acquisition of voting shares of a corporation incorporated in Canada carrying on the Canadian business;

  • (b) the acquisition of voting interests of an entity that

    • (i) is carrying on the Canadian business, or

    • (ii) controls, directly or indirectly, another entity carrying on the Canadian business,

    where there is no acquisition of control of any corporation;

  • (c) the acquisition of all or substantially all of the assets used in carrying on the Canadian business; or

  • (d) the acquisition of voting interests of an entity that controls, directly or indirectly, an entity in Canada carrying on the Canadian business, where

    • (i) there is no acquisition of control, directly or indirectly, of a corporation incorporated elsewhere than in Canada that controls, directly or indirectly, an entity in Canada carrying on the Canadian business, or

    • (ii) there is an acquisition of control described in subparagraph (i).

• Marginal note:Rules and presumptions respecting control of entities

  (2) Subject to subsections (4) to (5), (6.1) and (6.2), for the purposes of this Act,

  • (a) where one entity controls another entity, it is deemed to control indirectly any entity or entities controlled directly or indirectly by that other entity;

  • (b) an entity controls another entity directly

    • (i) where the controlling entity owns a majority of the voting interests of the other entity, or

    • (ii) where the other entity is a corporation and the controlling entity owns less than a majority of the voting shares of the corporation but controls the corporation in fact through the ownership of one-third or more of its voting shares;

  • (c) entities that are controlled, directly or indirectly, by the same entity are deemed to be associated with each other, with any other entities controlled by any one or combination of them and with the entity or entities that control them; and

  • (d) where entities that are associated pursuant to paragraph (c) own voting interests of the same entity, the associated entities may be treated as one entity for the purposes of establishing direct or indirect control of the entity in which they own voting interests.

• Marginal note:Presumptions respecting acquisition of control

  (3) Subject to subsections (4) to (5), (6.1) and (6.2), for the purposes of this Act,

  • (a) the acquisition of a majority of the voting interests of an entity or of a majority of the undivided ownership interests in the voting shares of an entity that is a corporation is deemed to be acquisition of control of that entity;

  • (b) the acquisition of less than a majority of the voting interests of an entity other than a corporation is deemed not to be acquisition of control of that entity;

  • (c) the acquisition of less than a majority but one-third or more of the voting shares of a corporation or of an equivalent undivided ownership interest in the voting shares of the corporation is presumed to be acquisition of control of that corporation unless it can be established that, on the acquisition, the corporation is not controlled in fact by the acquirer through the ownership of voting shares; and

  • (d) the acquisition of less than one-third of the voting shares of a corporation or of an equivalent undivided ownership interest in the voting shares of the corporation is deemed not to be acquisition of control of that corporation.

• Marginal note:Minister may determine

  (4) In the case of an entity that carries on or proposes to carry on a specific type of business activity that is prescribed for the purposes of paragraph 15(a), the Minister may, notwithstanding subsection (2) or (3), after considering any information and evidence submitted by or on behalf of the entity or otherwise made available to the Minister or the Director, determine that the entity is or is not controlled by another entity or that there has or has not been an acquisition of control of the entity, where the Minister is satisfied that the entity is or is not controlled in fact by that other entity or that there has or has not in fact been an acquisition of control of that entity, as the case may be.

• Marginal note:Minister may determine

  (4.1) For the purposes of Part IV.1, the Minister may, after considering any information and evidence submitted by or on behalf of an entity or otherwise made available to the Minister or the Director, determine that the entity is or is not controlled by another entity or that there has or has not been an acquisition of control of the entity, if the Minister is satisfied that the entity is or is not controlled in fact by that other entity or that there has or has not in fact been an acquisition of control of that entity, as the case may be.

• Marginal note:Minister may declare

  (5) If an entity referred to in subsection (4) or (4.1) has refused or neglected to provide, within a reasonable time, information that the Minister or the Director has requested and that the Minister considers necessary in order to make a decision under that subsection, the Minister may declare that the entity is or is not controlled by another entity or that there has or has not been an acquisition of control of the entity, as the case may be.

• Marginal note:Retroactivity possible

  (6) A determination made under subsection (4) or a declaration made under subsection (5) may be retroactive to such date, not earlier than June 19, 1992, as the Minister specifies, in which case the determination or declaration shall, for all purposes of this Act, be deemed to have been made on the date so specified.

• Marginal note:Minister may determine — control or acquisition of control by state-owned enterprise

  (6.1) The Minister may, after considering any information and evidence made available to the Minister or the Director, determine that an entity is or is not controlled by another entity, or that there has or has not been an acquisition of control of an entity, if the Minister is satisfied that the entity is or is not controlled in fact by a state-owned enterprise or that there has or has not been an acquisition of control in fact of that entity by a state-owned enterprise, as the case may be.

• Marginal note:Minister may declare — control or acquisition of control by state-owned enterprise

  (6.2) If an entity or a state-owned enterprise has refused or neglected to provide, within a reasonable time, information that the Minister or the Director has requested and that the Minister considers necessary in order to make a decision under subsection (6.1), the Minister may declare that the entity is or is not controlled by a state-owned enterprise or that there has or has not been an acquisition of control of the entity by a state-owned enterprise, as the case may be.

• Marginal note:Retroactivity possible

  (6.3) A determination made under subsection (6.1) or a declaration made under subsection (6.2) may be retroactive to any date, not earlier than April 29, 2013, that the Minister specifies, in which case the determination or declaration shall, for all purposes of this Act, be deemed to have been made on the specified date.

• Marginal note:Entity to be informed

  (7) The Minister shall inform the entity concerned, in writing, of any determination made under any of subsections (4), (4.1) and (6.1) or declaration made under subsection (5) or (6.2) and of any date specified under subsection (6) or (6.3), without delay after the determination or declaration is made.

Marginal note:Acquisition by more than one transaction or event

• 29 (1) For the purposes of this Act, the acquisition of anything includes any acquisition thereof that occurs as a result of more than one transaction or event, whether or not those transactions or events occur or have occurred as, or as a part of, a series of related transactions or events and, subject to any provision of this Act, whether or not one or more of those transactions or events occurred before the coming into force of this Act.

• Marginal note:Presumption

  (2) For the purposes of subsection (1), where, as a result of more than one transaction or event, not one of which is an acquisition of control within the meaning of subsection 28(1), an entity carrying on a Canadian business is controlled in fact through the ownership of voting interests by a non-Canadian, that non-Canadian is deemed to have acquired control of the entity at the time and in the manner of the latest of those transactions or events.

Marginal note:Contractual rights to acquire voting interests or assets

• 30 (1) For the purposes of this Act, a non-Canadian who has an absolute right under a written contract to acquire voting interests of an entity or to acquire any assets used in carrying on a business may, at the option of that non-Canadian, treat that right as if it had been exercised and as if that non-Canadian owned the voting interests or assets that are the subject of that right.

• Marginal note:Voting shares carrying more or less than a voting right

  (2) For the purposes of this Act, where a voting share has attached to it more than a single voting right, or a fraction of a voting right, that voting share is deemed to be the number of voting shares, or the fraction of a voting share, that corresponds to the number of voting rights or fraction of a voting right that the voting share confers.

Marginal note:Business partly in Canada

• 31 (1) A Canadian business shall be deemed to be carried on in Canada notwithstanding that it is carried on partly in Canada and partly in some other place.

• Marginal note:Part of a business

  (2) A part of a business that is capable of being carried on as a separate business is a Canadian business if the business of which it is a part is a Canadian business.

Timing Rules

Marginal note:New Canadian businesses

• 32 (1) The time at which a new Canadian business is established is the time at which it becomes a Canadian business.

• Marginal note:Investments

  (2) The time at which an investment is implemented is the time at which the new Canadian business that is the subject of the investment is established or the time at which control of the Canadian business that is the subject of the investment is acquired.

Sending Notices, Receipts or Demands

Marginal note:Means of sending

33 Where a notice, receipt or demand is required to be sent by the Minister or the Director under any provision of this Act, it shall be sent by personal delivery, registered mail, telecommunicated text or any other verifiable means of communication.

Operation of Other Acts

Marginal note:Operation of other Acts

34 Nothing in or done under the authority of this Act affects the operation of any other Act of Parliament that applies to or in respect of any particular Canadian business or class of Canadian businesses, except as expressly provided in this Act.

PART VIGeneral

Regulations

Marginal note:Regulations

• 35 (1) The Governor in Council may make regulations

  • (a) prescribing anything that, pursuant to any provision of this Act, is to be prescribed; and

  • (b) prescribing any other matter or thing necessary for carrying into effect the purposes and provisions of this Act.

• Marginal note:Prescribing periods

  (1.1) Any regulations prescribing a period for the purposes of subsections 25.2(1) and 25.3(1) may provide for a separate period depending on whether it is in respect of an investment referred to in section 11 or 14 or any other investment and, for the purposes of subsection 25.3(1), depending on whether a notice has or has not been issued under subsection 25.2(1).

• Marginal note:Tabling regulations

  (2) Any regulations made for the purposes of section 15 or the definition new Canadian business in section 3 that prescribe a specific type of business activity that, in the opinion of the Governor in Council, is related to Canada’s cultural heritage or national identity shall be laid before each House of Parliament on any of the first five days on which that House is sitting after they are made and shall not come into force before sixty days after they are made.

• Marginal note:Referral to committee

  (3) Any regulations laid before a House of Parliament pursuant to subsection (2) shall be referred to such standing or special committee of that House as may be established or designated for the purpose of studying matters to which the regulations relate.

• Marginal note:Exception

  (4) Subsection (2) does not apply to any regulation referred to in that subsection that comes into force on the day this Act comes into force.

Privileged Information

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.