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Bill C-38, the Jobs, Growth and Long-term Prosperity
Act, which was given first reading on April 26, 2012, contains
a proposed amendment to the Investment Canada Act to allow
the Industry Minister to publicly disclose the fact that he has
sent a preliminary notice to a foreign investor that he is not
satisfied that the foreign investor's proposed investment is
likely to be of net benefit to Canada.
In connection with BHP Billiton's bid for PotashCorp in 2010,
the Industry Minister found himself prohibited from commenting on
the reasons for issuing such a notice when, after its issuance, BHP
abandoned its bid before the Minister could make a final decision
under the Act. While, in the case of a formal decision to allow or
disallow an investment, the Industry Minister is expressly
permitted to communicate information contained in the reasons given
for such decision, there was no corresponding provision allowing
such communication with respect to his issuance of a preliminary
notice that he is not satisfied with the foreign investor's
proposed investment. The amendment remedies that situation;
however, if the information pertains to financial, commercial,
scientific or technical information, such information will not be
disclosed if the Minister can be satisfied that the release of such
information would be prejudicial to the person to whom the
information relates.
The proposed amendments also contain provisions intended to
promote foreign investor compliance with undertakings by
authorizing the Minister to accept security, when offered by an
investor, for payment of any penalties ordered by a court for a
contravention of the Act.
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