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

Written Opinions

Marginal note:Ministerial opinions

• 37 (1) If any question arises under this Act as to whether an individual or entity that proposes to establish, or to acquire control of, a Canadian business that carries on a specific type of business activity referred to in paragraph 15(a) is a Canadian, the Minister shall, on application by or on behalf of the individual or entity consider the application and any information and evidence submitted in connection with the application and, unless the Minister concludes that the submitted information and evidence is not sufficient to enable the Minister to reach an opinion on the question, shall provide the applicant with a written opinion for the guidance of the applicant.

• Marginal note:Time for providing opinion

  (1.1) The Minister shall provide his or her opinion no later than 45 days after the Minister concludes that the information and evidence he or she has received is sufficient to enable him or her to reach an opinion on the question.

• Marginal note:Other opinions

  (2) Anyone may apply to the Minister, with supporting information, for an opinion on the applicability to them of any provision of this Act or the regulations to which subsection (1) does not apply, and the Minister may provide the applicant with a written opinion for the applicant’s guidance. For greater certainty, the application may be in relation to any question that arises under this Act as to whether the applicant is a Canadian.

• Marginal note:Time for providing opinion

  (2.1) If the Minister decides to provide an opinion under subsection (2), he or she shall provide it no later than 45 days after the Minister concludes that the information he or she has received is sufficient to enable him or her to reach an opinion on the question.

• Marginal note:Opinion binding

  (3) If the material facts submitted by or on behalf of an applicant for an opinion are accurate, a written opinion provided under this section is binding on the Minister and the Director for so long as the material facts on which the opinion was based remain substantially unchanged.

• Marginal note:Authorized opinions

  (4) The Minister may authorize the Director or any person the Minister deems qualified to provide written opinions under this section, and any opinion so provided has the same effect as if it had been provided under this section by the Minister.

Guidelines and Interpretation Notes

Marginal note:Guidelines and interpretation notes

38 The Minister may issue and publish, in such manner as the Minister deems appropriate, guidelines and interpretation notes with respect to the application and administration of any provision of this Act or the regulations.

Report

Marginal note:Annual report

• 38.1 (1) The Director shall, for each fiscal year, submit a report on the administration of this Act to the Minister and the Minister shall make the report available to the public.

• Marginal note:Required information

  (2) The report shall include information on the exercise of ministerial duties and powers under Part IV.1.

PART VIIRemedies, Offences and Punishment

Marginal note:Ministerial demand

• 39 (1) Where the Minister believes that a non-Canadian, contrary to this Act,

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

  • (a.1) has failed to provide any prescribed information or any information that has been requested by the Minister or Director,

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

  • (c) has implemented an investment on terms and conditions that vary materially from those contained in an application filed under section 17 or from any information or evidence provided under this Act in relation to the investment,

  • (d) has failed to divest himself of control of a Canadian business as required by section 24,

  • (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,

  • (e) has failed to comply with a 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,

  • (f) has failed to comply with any other provision of this Act or with the regulations, or

  • (g) has entered into any transaction or arrangement primarily for a purpose related to this Act,

  the Minister may send a demand to the non-Canadian, requiring the non-Canadian, forthwith or within such period as is specified in the demand, to cease the contravention, to remedy the default, to show cause why there is no contravention of the Act or regulations or, in the case of undertakings, to justify any non-compliance therewith.

• 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:Contents of demand

  (3) A demand under subsection (1) or (2) shall indicate the nature of the proceedings that may be taken under this Act against the non-Canadian or other person or entity to which it is sent in the event that the non-Canadian, person or entity fails to comply with the demand.

Marginal note:New undertaking

39.1 If the Minister believes that a non-Canadian has failed to comply with a 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, the Minister may, after the investment has been implemented, accept a new undertaking from the non-Canadian.

Marginal note:Application for court order

• 40 (1) If a non-Canadian or any other person or entity fails to comply with a demand under section 39, an application on behalf of the Minister may be made to a superior court for an order under subsection (2) or (2.1).

• 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 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 as, in its opinion, the circumstances require, including, without limiting the generality of the foregoing, an order

  • (a) directing the non-Canadian to divest themselves of control of the Canadian business, or to divest themselves of their investment in the entity, on any terms and conditions that the court considers just and reasonable;

  • (b) enjoining the non-Canadian from taking any action specified in the order in relation to the investment that might prejudice the ability of a superior court, on a subsequent application for an order under paragraph (a), to effectively accomplish the end of such an order;

  • (c) directing the non-Canadian to comply with a written undertaking given to Her Majesty in right of Canada in relation to an investment that the Minister is satisfied or is deemed to be satisfied is likely to be of net benefit to Canada;

  • (c.1) directing the non-Canadian to comply with a written undertaking given to Her Majesty in right of Canada in accordance with an order made under section 25.4;

  • (d) against the non-Canadian imposing a penalty not exceeding ten thousand dollars for each day the non-Canadian is in contravention of this Act or any provision thereof;

  • (e) directing the revocation, or suspension for any period specified in the order, of any rights attached to any voting interests acquired by the non-Canadian or of any right to control any such rights;

  • (f) directing the disposition by any non-Canadian of any voting interests acquired by the non-Canadian or of any assets acquired by the non-Canadian that are or were used in carrying on a Canadian business; or

  • (g) directing the non-Canadian or other person or entity to provide information requested by the Minister or Director.

• 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.

• Marginal note:Penalties recoverable as debts

  (3) A penalty imposed by an order made under paragraph (2)(d) or subsection (2.1) is a debt due to Her Majesty in right of Canada and is recoverable as such in a superior court.

• Marginal note:Contempt of court

  (4) Everyone who fails or refuses to comply with an order made by a superior court under subsection (2) or (2.1) that is directed to them may be cited and punished by the court that made the order, as for other contempts of that court.

• Marginal note:Rights of appeal

  (5) For greater certainty, all rights of appeal provided by law apply in the case of any decision or order made by a superior court under this section, as in the case of other decisions or orders made by that court.

• Marginal note:Definition of superior court

  (6) In this section, superior court has the same meaning as in subsection 35(1) of the Interpretation Act  but does not include the Supreme Court of Canada, the Federal Court of Appeal or the Tax Court of Canada.

Marginal note:Vesting orders

• 41 (1) Where any voting interests or assets in respect of which an order is made under paragraph 40(2)(f) are owned by a non-Canadian outside Canada and that non-Canadian fails to comply with the order within such reasonable time as is fixed by the court that made the order, the court may, by order, vest those voting interests or assets in a trustee named by it who may thereupon, notwithstanding any other Act or law, do all such things and execute all such documents as are necessary to give effect to the order of the court.

• Marginal note:Application of proceeds

  (2) Any proceeds of the disposition of any voting interests or assets received by a trustee under subsection (1) shall first be applied to the payment of the trustee’s fees and expenses in acting as trustee and thereafter any balance remaining shall be paid by the trustee to those who would, but for the vesting order, have been entitled to receive the proceeds.

Marginal note:Summary conviction offences

42 Every one who contravenes section 36 or who knowingly provides false or misleading information under this Act or the regulations is guilty of an offence punishable on summary conviction.

Marginal note:Limitation period

43 Proceedings by way of summary conviction in respect of an offence under this Act may be instituted at any time within but not later than two years after the time when the subject-matter of the proceedings arose.

PART VIII[Repealed, 1995, c. 1, s. 49]

PART IXTransitional, Consequential Amendments and Commencement

Transitional

Marginal note:Terms, conditions and undertakings

• 45 (1) All terms and conditions of, and all undertakings given in relation to, an investment that has been allowed under the Foreign Investment Review Act, chapter 46 of the Statutes of Canada, 1973-74, are enforceable under this Act as if the investment were subject to this Act.

• Marginal note:Legal proceedings under FIRA

  (2) Any legal proceedings taken in respect of an investment under section 19, 20 or 21 of the Foreign Investment Review Act, chapter 46 of the Statutes of Canada, 1973-74, that are pending on the coming into force of this Act may be continued in respect of that investment under this Act.

• Marginal note:Legal proceedings under this Act

  (3) Any legal proceedings may be taken under this Act in respect of an investment that has been the subject of any order or deemed allowance under section 12 or 13 of the Foreign Investment Review Act, chapter 46 of the Statutes of Canada, 1973-74.

• Marginal note:Privileged information

  (4) All information that is privileged under section 14 of the Foreign Investment Review Act, chapter 46 of the Statutes of Canada, 1973-74, remains privileged under this Act, subject to the provisions of section 36 of this Act.

• Marginal note:Pending notices

  (5) Where an investment, whether implemented or not, notice of which has been given under section 8 of the Foreign Investment Review Act, chapter 46 of the Statutes of Canada, 1973-74, has not, on the coming into force of this Act, been the subject of any order or deemed allowance under section 12 or 13 of the Foreign Investment Review Act, a complete notice under section 12 of this Act or a complete application under section 17 of this Act shall be deemed to have been received by the Director in respect of that investment on the day this Act came into force.

• Marginal note:Prior investments

  (6) Where an investment to which the Foreign Investment Review Act, chapter 46 of the Statutes of Canada, 1973-74, applied has been implemented, and no notice has been given in respect of that investment under section 8 of that Act prior to the coming into force of this Act, that investment shall be deemed to have been implemented on the day this Act came into force.

• Marginal note:Prior opinions

  (7) Where, on the coming into force of this Act, a person has a binding opinion furnished under section 4 of the Foreign Investment Review Act, chapter 46 of the Statutes of Canada, 1973-74, that the person is not a non-eligible person under that Act, that person is deemed to be a Canadian for so long as the material facts on which that opinion was based remain substantially unchanged or for two years from the date of the coming into force of this Act, whichever period is shorter.

Access to Information Act

46 [Amendment]

Bank Act

47 [Amendment]

Canadian Ownership and Control Determination Act

48 [Amendment]

Citizenship Act

49 [Amendment]

Northern Pipeline Act

50 [Amendments]

Commencement

Marginal note:Coming into force

Footnote ^*51 This Act or any provision thereof shall come into force on a day or days to be fixed by proclamation.

• Return to footnote ^*[Note: Act in force June 30, 1985, see SI/85-128.]