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NORTH AMERICA: "Doing Business in Canada" presentation. 58-slide presentation by Dan Ujczo, Dickinson Wright, PLLC.
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backAMERItalk May, 2005
An overview of the Investment Canada Act (FAQ)
Note: This document is not intended to provide legal advice. Investors and their representatives are urged to contact Investment Review Division officials directly at (613) 954-1887 for more detailed information.
The purpose of the Investment Canada Act (the Act) is "to provide for the review of significant investments in Canada by non-Canadians in order to ensure such benefit to Canada" (s. 2). The legislation describing the "review function" and associated rules are complex and because of that complexity, this document is intended to serve both as an introduction to and a description of the key features of the Act. It will hopefully help investors and others who are interested in the application of the legislation understand how non-Canadian investors are to respond to the requirements of the Act.
It should be noted, however, that this is only a general guide for the reader. It does not include all the details found in the Act and is not intended to express a legal opinion of the Government of Canada as to the interpretation of the Act nor is it bound by its content. For the application of the Act to a particular situation, the reader is advised to consult the specific provisions of the Act and obtain appropriate legal counsel.
With respect to all investments except those that fall within a prescribed type of business activity as set out in Schedule IV of the Regulations, the Department responsible for the administration of the Act is Industry Canada . With respect to investments which fall within a Schedule IV prescribed business activity, the Department responsible for the administration of the Act is the Department of Canadian Heritage.
Frequently Asked Questions about the Act
- Does the Investment Canada Act apply to me?
- When do I have to file a Notification?
- When will an investment be reviewable?
- How do I know which Department will review my investment?
- Under what circumstances will the acquisition of a business which owns pipelines trigger an application for review?
- How long does the review process take?
- Can I implement an investment that is subject to review prior to a decision?
- What does "net benefit" mean?
- What happens if the Minister is not satisfied of "net benefit" and does not approve the investment?
- Binding Opinions
- Third Party Representations
- For More Information
Does the Investment Canada Act apply to me?
If you are not a Canadian citizen or a permanent resident, within the meaning of the Immigration Act (ie. a person who has been ordinarily resident in Canada for not more than one year after the time at which he/she first became eligible to apply for Canadian citizenship), then you are a non-Canadian and must comply with the provisions of the Investment Canada Act .
For the purposes of the Act, a non-Canadian includes any entity that is not controlled or beneficially owned by Canadians.
If you are a non-Canadian, then you MUST either file a Notification or an Application for Review of the investment unless a specific exemption applies.
If you are a non-Canadian then 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.
A Notification must be filed no later than thirty days after the implementation of the investment.
1. An investment is reviewable if there is an acquisition of a Canadian business and the asset value of the Canadian business being acquired equals or exceeds the following thresholds:
(a) For non-WTO investors, the threshold is $5 million for a direct acquisition and over $50 million for an indirect acquisition; the $5 million threshold will apply however for an indirect acquisition if the asset value of the Canadian business being acquired exceeds 50% of the asset value of the global transaction.
(b) Except as specified in paragraph (c) below, a threshold is calculated annually for reviewable direct acquisitions by or from WTO investors. The threshold for 2004 is $237 million. Pursuant to Canada's international commitments, indirect acquistions by or from WTO investors are not reviewable.
(c) The limits set out in paragraph (a) a apply to all investors for acquisitions of a Canadian business that:
(i) engages in the production of uranium and owns an interest in a producing uranium property in Canada;
(ii) provides any financial service;
(iii) provides any transportation service; or
(iv) is a cultural business.
2. Notwithstanding the above, any investment which is usually only notifiable, including the establishment of a new Canadian business, and which falls within a specific business activity listed in Schedule IV of the Regulations Respecting Investment in Canada , may be reviewed if an Order-in-Council directing a review is made and a notice is sent to the Investor within 21 days following the receipt of a certified complete notification.
Pursuant to subsections 14(1), (3) and 14.1(5) of the Investment Canada Act (the "Act"), the direct acquisition of a Canadian business which provides transportation services is subject to review where the asset value of the business acquired, calculated according to the Investment Canada Regulations (the "Regulations"), is $5 million or more. Pursuant to subsections 14(1), (4) and 14.1(5) of the Act, the indirect acquisition of such a business is subject to review where the asset value is $50 million or more.
"Transportation services" are defined in section 2.2 of the Regulations as follows:
2.2 For the purposes of paragraph 14.1(5)(c) of the Act, "transportation services" means a Canadian business directly or indirectly engaged in the carriage of passengers or goods from one place to another by any means, including, without limiting the generality of the foregoing, carriage by air, by rail, by water, by land and by pipeline."
The oil and gas industry makes extensive use of pipelines. By this definition, the transportation of gas or oil through a pipeline constitutes a transportation service. Thus, an entity the sole purpose of which is to operate a pipeline will be a transportation service. However, where the transportation service provided through a pipeline is an ancillary or incidental portion of a type of business other than a transportation service, the Investment Review Division ("IRD") may deem the business not to be a transportation service.
To determine the extent, if any, to which the transportation service is ancillary or incidental to the business being acquired, IRD will consider a number of factors, including:
• The assets being acquired (e.g. wells, plants, pipelines) and their corresponding asset values.
• The ownership and control of the various assets being acquired.
• The nature of the assets or facilities connected by the pipeline and the ownership or control of these assets or facilities.
• The extent to which third party oil or gas is being transported through the pipeline (e.g. volume and percentage of overall throughput), and the business reason(s) for this.
• The amount and percentage of the overall business revenues derived (a) from the pipeline activity and (b) the transportation of third party gas or oil.
This list is not exhaustive and other factors may be considered. IRD will consider each transaction on a case by case basis. This statement sets out a general approach and is not intended to be a binding statement of how IRD will interpret the Act for a particular transaction and should not be taken as such, nor is it intended to restate the law.
Guidance regarding a specific transaction may be requested from the IRD. A formal written opinion under section 37 of the Act may be requested through a formal written opinion request.
Every effort is made to process applications for review as quickly as possible. Under the Act, the Minister has 45 days to determine whether or not to allow the investment. The Minister can unilaterally extend the 45 day period by an additional 30 days by sending a notice to the investor prior to the expiration of the initial 45 day period. Further extensions are permitted if both the investor and the Minister agree to the extension. If no approval or notice of extension is received within the applicable time then the investment is deemed approved. It is not unusual for the Minister to extend the initial 45 day review period by an additional 30 days to permit full consideration of the investment. In the case of investments in cultural businesses, the review will usually require at least 75 days to complete. (ss.21, 22, 23)
Generally, a reviewable investment may not be implemented prior to the investor having received a decision from the Minister that the investment is of "net benefit" to Canada. There are three exceptions:
1. Where the Minister is satisfied that a delay in implementing the investment would result in undue hardship to the investor or would jeopardize the operations of the Canadian business and the Minister has sent a notice to the investor permitting implementation of the investment prior to completion of the review process;
2. Where the investment is implemented as the result of an acquisition of control of a corporation incorporated outside of Canada; and
3. Where the investment is not normally reviewable, but the Government exercises its authority by Order-in-Council to review the investment because the investment involves a Schedule IV business activity.
In determining whether an investment is of "net benefit", the Minister will consider the following factors:
(a) the effect on the level of economic activity in Canada, on employment; on resource processing; on the utilization of parts and services produced in Canada and on exports from Canada;
(b) the degree and significance of participation by Canadians in the Canadian business or new Canadian business and in any industry or industries in Canada;
(c) the effect of the investment on productivity, industrial efficiency, technological development, product innovation and product variety in Canada;
(d) the effect of the investment on competition within any industry in Canada;
(e) the compatibility of the investment with national industrial, economic and cultural policies; and
(f) the contribution of the investment to Canada's ability to compete in world markets.
The investor should address each of these factors and provide supporting documentation and financial data when submitting an application for review. Depending upon the nature of and the circumstances surrounding the investment, some of the above factors will be given more weight than others. The more specific the investor's plans and/or undertakings which address the above factors, the greater the likelihood a speedy approval will be obtained.
If the Minister advises that he/she is not satisfied that the investment represents a "net benefit" to Canada, the Act provides an opportunity for the investor to make additional representations and undertakings which would demonstrate the "net benefit" of the investment. Ultimately, if the Minister remains unsatisfied, a notice will be sent to the investor advising of the Minister's decision and the investor will be prohibited from implementing the investment or if the investment has already been implemented the investor will be required to divest itself of the investment. (ss. 23, 24)
An investor may seek an opinion from the Minister or Director of Investments with respect to any matter of interpretation of the Investment Canada Act. Once an opinion is provided the opinion is binding upon the Minister and the Director for so long as the material facts on which the opinion was based remain substantially unchanged. Opinions are generally sought in respect to the status of an individual or entity as a Canadian, general questions of interpretation, and whether or not there are grounds for an early implementation of the investment. (s. 37)
While other federal government departments and provincial governments are regularly consulted during the review process, representations are not solicited from any other persons. However, where unsolicited representations are received that could have an adverse bearing on the determination of net benefit, applicants will be advised of the substance of those representations and given an opportunity to respond to them. The identity of persons making third party representations will not be disclosed to the applicant. Information provided to the Government by the applicant will not be divulged to a third party intervenor without the consent of the applicant.
Where relevant to the factors used in the determination of net benefit, the Minister will be advised both of any outside representations made with respect to an investment and of any response to those representations made by the applicant.
The Investment Canada Act contains very rigid confidentiality provisions. All information received by Industry Canada and its officials in relation to an investor or a Canadian business is treated as privileged and confidential information and may not be disclosed except in relation to the administration of the Act or with the consent of the parties to whom the information pertains. The confidentiality provisions are meant to encourage investors to share information with the appropriate Industry Canada officials to make the review process more efficient for all parties and to allow a provider of information to be secure in the knowledge that the sensitive business information provided will not be misused or indiscretely communicated.
Source: Industry Canada, Investment Review Division - GAI
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