Canada: 2013 Investment Canada Update

Summary

If you wish to invest in Canada but are neither a Canadian citizen nor a permanent resident within the meaning of the Immigration Act, then you are a "non-Canadian" and must comply with the provisions of the federal government's Investment Canada Act. For these purposes, a non-Canadian includes any entity controlled or beneficially owned by non-Canadians.

Virtually every new business acquisition or investment in Canada by a non-Canadian is either notifiable, i.e., the Investment Canada Act requires a Notification document to be filed, or, is reviewable, ie., an Application for Review must be filed. This includes both direct and indirect acquisitions.

What is notifiable?

If you are a non-Canadian, you must file a Notification each and every time you commence a new business activity in Canada, and each time you acquire control of an existing Canadian business where the establishment or acquisition of control is not a reviewable transaction. Notifications must be filed no later than 30 days after the implementation (i.e. closing, generally) of the investment. Notification need not be given in advance of implementation.

What is reviewable?

Whether an investment is reviewable depends on the country of the investor, the value of the acquisition, and the nature of the investment. Generally, where the investment comes from a World Trade Organization ("WTO") country, an Application for Review is only required for direct investments in excess of a figure that is adjusted annually (asset value exceeding $344 million for investments completed in 2013).

Note that as a result of legislation enacted in mid-2009, but not yet in force, this general threshold will increase to $600 million on a date to be announced, and thereafter increase in stages to $1 billion. Instead of asset value, the new test will look at enterprise value. Enterprise value for publicly traded entities will equal market capitalization, plus liabilities, minus cash and cash equivalents, while enterprise value of a privately held company will equal acquisition value, plus liabilities, minus cash and cash equivalents.

Indirect acquisitions by WTO countries are generally not reviewable. WTO member countries include most of the principal economies of the world, including Taiwan.

However, investments from WTO member countries in a cultural business are reviewable if the value of the transaction exceeds five million dollars for direct acquisitions, or exceeds $50 million for indirect acquisitions. Cultural businesses are very broadly defined to include the publication, distribution or sale of books, magazines, periodicals, newspapers, film, video recordings, audio, video music recordings, music in print or machine readable form, and radio communications including any radio, television and cable television broadcasting undertakings and satellite programming and broadcasting. The government gives as an example a corner store selling a variety of magazines, and takes the position that this is the carrying on of a cultural business requiring review. It is important to note that even investments in the cultural industry below the $5 million and $50 million limits set out above, are normally made subject to review by a special order-in-council passed by the federal Cabinet within 21 days after a Notification is filed.

Where the investor is non-Canadian and not from a WTO member country, generally an Application for Review is mandatory wherever the investment is more than five million dollars in the case of direct acquisitions and more than $50 million for indirect acquisitions.

Please note that other legislation may apply to restrict investments in other sectors, principally banking and telecommunications, in respect of which Gowlings may also provide advice and Government Affairs services.

What about national security reviews?

A review may also be ordered in respect of an investment, regardless of size or type, if the Minister has reasonable grounds to believe that the transaction could be injurious to national security. No guidelines are issued to assist in identifying national security investments. The government may initiate a national security review any time before and up to 45 days after notification of the investment transaction.

How long does it take?

The Investment Canada Act allows the Minister 45 days to determine whether or not an Application for Review should be allowed, but the Minister may unilaterally extend by an additional 30 days. Cultural industry reviews often require at least 75 days to complete. The national security provisions add considerably to the delays in completing an investment in Canada for those transactions singled out for possible review.

What does likely net benefit to Canada mean?

Likely net benefit to Canada is a test which focuses on the level of economic activity in Canada including employment, resource processing and utilization of parts and services produced in Canada and Canadian exports, together with the degree and significance of participation by Canadians in the business, the effect of the investment on productivity, competition, national industrial economic and cultural policies and the contribution of the investment to Canada's ability to compete in world markets, among other matters.

May I proceed without the Minister's approval?

This depends on the type of transaction.

A reviewable investment may not be implemented (i.e., closed) prior to the investor receiving a decision from the Minister that the investment is of "net benefit" to Canada (or, in the case of national security reviews, until the Minister is satisfied that the investment would not be injurious to national security).

A notifiable investment may be closed without approval, except in the case of cultural industries where to do so carries the risk of an after-the-fact veto by the Minister. Formal or informal consultation is recommended in the case of cultural investments.

Who approves the transaction?

The Minister generally responsible for the Investment Canada Act is the Federal Minister of Industry.

The Minister of Canadian Heritage is responsible investments related to the cultural sector including books and films.

Both Ministers are in Ottawa along with their public servants.

Federal officials solicit the views of provincial governments in respect of reviewable transactions. They also seek input from other federal departments prior to making a final decision.

Gowlings provides legal advice and full Government Affairs support in dealing with both Federal and Provincial officials on all Investment Canada matters.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Osler, Hoskin & Harcourt LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Osler, Hoskin & Harcourt LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions