Ian Macdonald
Partner
Guide
29
Foreign investment in Canada is regulated by the federal Investment Canada Act (ICA). Its purpose is to encourage foreign investment on terms that are beneficial to Canada.
While the ICA is primarily administered by Innovation, Science and Economic Development Canada, the Department of Canadian Heritage administers the Act in relation to defined "cultural businesses," which is discussed later in this chapter.
In general, the acquisition of control of an existing Canadian business or the establishment of a new Canadian business by a foreign investor is subject to notification or review.
Notification involves the completion of a prescribed form to provide certain information about the foreign investor, the Canadian business and the vendor. It is not an impediment to the closing of an acquisition - in fact, it can be submitted within 30 days of closing and is often submitted after closing.
Where review is required, the foreign investor must submit more detailed information about itself and comprehensive plans for the Canadian business before closing. Where review is necessary, the foreign investor may only complete the proposed investment if the minister of Innovation, Science and Industry or the minister of Canadian Heritage and Multiculturalism, as applicable, determines it to be of "net benefit to Canada."
Whether the investment is reviewable, or merely notifiable, depends on a combination of the following factors:
Certain transactions involving foreign investors are exempt from the provisions of the ICA, including internal corporate reorganizations that involve no change of ultimate control, realization of security held by a foreign entity on Canadian assets, bona fide estate transfers, and acquisitions of control of Canadian businesses subject to review under other Canadian legislation, such as the Bank Act (Canada).
A Canadian business is a business that has:
A foreign investor is essentially a non-Canadian.
With respect to individuals, a Canadian is a Canadian citizen or, subject to certain qualifications, a permanent resident of Canada within the meaning of Canada's immigration legislation.
With respect to a business undertaking - including one owned by a government - the undertaking is considered Canadian if it is Canadian-controlled. Provisions relating to Canadian control are detailed and complex, but generally:
The ICA contains detailed and complex provisions relating to the acquisition of control of a Canadian business by a foreign investor. To summarize:
Thresholds differ depending on the characteristics of the investor and the investment in question. If the review thresholds are not exceeded, the investment is subject to the notification procedure previously described.
Non-cultural Target Canadian Business | Cultural Target Canadian Business | ||
---|---|---|---|
Trade Agreement Investors Applies where the Investor is controlled by residents of a country with which Canada has free trade agreement (U.S., EU, UK, Mexico, Chile, Peru, Columbia, Panama, Honduras, South Korea, Australia, Japan, New Zealand, Singapore, Vietnam, Malaysia, Brunei) or where the Canadian business that is the subject of the investment is, immediately prior to the implementation of the investment, controlled by a Trade Agreement Investor. | Non-SOE | C$1.931 billion enterprise value | C$5 million book value of assets |
SOE | C$512 million book value of assets | C$5 million book value of assets | |
WTO Member State Investor
Applies where the Investor is controlled by residents of a World Trade Organization member country or where the Canadian business that is the subject of the investment is, immediately prior to the implementation of the investment, controlled by a WTO Investor. | Non-SOE | C$1.287 billion enterprise value | C$5 million book value of assets |
SOE | C$512 million book value of assets | C$5 million book value of assets | |
Non-WTO Member State Investor Applies where the Investor is controlled by residents of a country that is not a WTO member and where the Canadian business that is the subject of the investment is not, immediately prior to the implementation on the investment, controlled by a non-Canadian that is a WTO investor | Non-SOE or SOE | C$5 million book value of assets | C$5 million book value of assets |
Statistically, the most common permutation of foreign investment is the direct acquisition of a non-cultural Canadian business by a Trade Agreement Investor, to which the $1.565 billion enterprise value threshold applies.
The formula for determining the enterprise value (EV) varies depending on whether the foreign investor is acquiring shares of a publicly traded company, 100 per cent of the shares of a private company, less than 100 per cent but more than a controlling number of shares of a private company, or assets.
In summary:
EV of publicly traded company = market capitalization + liabilities other than operating liabilities - cash and cash equivalents.
Market capitalization is based on the average closing price of the target's quoted equity securities in its principal market during the 20 trading days ending before the first day of the month immediately preceding the month in which the foreign investor submits its application for Review or Notification Form.
EV of private company = acquisition value + liabilities other than operating liabilities - cash and cash equivalents.
EV of assets = acquisition value + liabilities assumed by the investor other than operating liabilities - cash and cash equivalents.
In the following situations, the board of directors or other authorized body of the foreign investor are required to determine the fair market value of the applicable item for inclusion into the balance of the applicable enterprise value formula:
In some cases, it may be difficult to determine whether a foreign investor is an SOE and, by extension, which threshold applies. This is because the Act's definition of SOE includes an entity that is "controlled or influenced, directly or indirectly" by the government of a foreign state, whether federal, state or local, or an agency of such a government.
Cultural businesses include:
The ICA does not provide an exemption for de minimis involvement in a cultural business. Thus, even if a Canadian business is primarily involved in non-cultural business activities, a minimal involvement in cultural business activities will trigger the review obligation if the $5-million threshold is exceeded.
When review is required for a proposed acquisition of a Canadian business that involves both non-cultural and cultural business activities, applications for review must be submitted to Innovation, Science and Economic Development Canada (with respect to the non-cultural aspects of the business) and the Department of Canadian Heritage (with respect to the cultural aspects of the business).
(i.e. acquisition of the shares of a non-Canadian corporation that has a Canadian subsidiary)
Non-cultural | Cultural | |
---|---|---|
WTO Member State Investor (this group includes Trade Agreement investors) | Not reviewable | C$5 million or C$50 million book value of assets depending on the proportion of Canadian assets |
Non-WTO Member State Investor | C$5 million or C$50 million book value of assets depending on the proportion of Canadian assets | C$5 million or C$50 million book value of assets depending on the proportion of Canadian assets |
It should be noted that structuring a transaction for the purpose of avoiding review - e.g., incorporating a corporation outside of Canada, the sole assets of which are the shares of the Canadian corporation, and then purchasing the shares of the foreign corporation - is not permissible.
In addition to reviews that result from the application of the aforementioned rules, the government has other discretionary powers to order a review. For example:
Where review is required, the foreign investor must submit an Application for Review and may not complete the proposed investment until the minister of Innovation, Science and Economic Development and/or minister of Canadian Heritage and Multiculturalism, as applicable, has determined it to be of "net benefit to Canada".
In the application, detailed information is required about the foreign investor, the Canadian business and the foreign investor's plans for the Canadian business.
To determine whether the proposed investment is likely to be of net benefit to Canada, the government considers factors such as:
In considering these factors, the minister of Innovation, Science and Economic Development or the minister of Canadian Heritage and Multiculturalism, or both as applicable, will consult with other relevant federal government departments as well as the governments of affected provinces, which are typically provinces in which the Canadian business has assets or employees.
A determination of net benefit to Canada is usually based on undertakings made by the foreign investor in relation to the factors outlined above. Undertakings are legally binding commitments made by a foreign investor that typically remain in effect for three to five years, and are subject to compliance reviews and audits over that time.
In our experience, the government is most concerned with securing undertakings that relate to specific levels of employment in Canada, the inclusion of Canadians in management positions, capital investment in the Canadian business and further development of Canadian-sourced technology in the country. However, the specific focus of the undertakings varies depending on the nature of the business.
The ICA provides the minister of Innovation, Science and Economic Development and/or minister of Canadian Heritage and Multiculturalism, as applicable, with 45 days to determine whether a proposed investment would be of net benefit to Canada, along with a unilateral right to extend the review period by 30 days. Additional extensions require the agreement of the foreign investor - without which the applicable minister would likely reject the investment.
In our experience, it is not uncommon for the review of large and complex transactions with significant political overtones to extend beyond 75 days.
The government may either approve the proposed investment or reject it. Almost all proposed investments are ultimately approved based on undertakings negotiated between the investor and the government. Only a handful of high-profile and/or politically controversial transactions have been rejected. For transactions that could raise significant political concerns, foreign investors should not underestimate the importance of an effective government relations strategy.
There is no filing fee for either an Application for Review or a Notification.
In 2009, the ICA was amended to provide the government with the right to review any investment that "could be injurious to national security." The government subsequently amended the national security provisions several times to provide itself with additional flexibility in relation to national security matters. This right to review applies to minority investments, internal reorganizations and the establishment of new Canadian businesses, not just the acquisition of control of existing Canadian businesses. It can also apply to investments in businesses with tenuous links to Canada, as a review can be ordered if "any part" of the business' operations are in Canada.
There is no minimum investment size below which a review on national security grounds may not be ordered. The national security provision empowers the government to prohibit any proposed investment, impose conditions on its completion, or require divestiture of a completed investment. A national security review can take up to 200 days or longer.
The government did not originally provide any guidance as to the factors that could trigger a national security review or influence its outcome. This degree of opaqueness resulted in significant criticism from stakeholders. Among other things, it made it difficult for potential investors to assess the risk of incurring significant pursuit costs in relation to acquisitions that could ultimately be rejected on national security grounds.
In the summer of 2016, in its annual report on the administration of the ICA the government released, for the first time, some high level information on the use of the national security review powers, including the number of reviews that had been conducted, broken down by year, and their outcomes. The government released similar information in its 2017 annual report. In its 2018 annual report, the government released, for the first time, the country of origin of the applicable foreign investors.
Summarized below are the number of national security reviews that have occurred, their outcomes and the buyer's country of origin, broken down by year, since the national security review powers were added to ICA in 2009.
Year | 2018-19 | 2019-20 | 2020-2021 | 2021-22 | 2022-23 |
Number of Reviews | 7 | 7 | 11 | 12 | 22 |
Outcome and Country of Origin of Buyer** | 3 Terminated without remedy (2 China and Switzerland) 2 Divestitures Required (China and Switzerland) 2 Transaction Aborted by Parties (China, Singapore) | 1 Terminated without remedy (Belarus) 3 Divestitures Required (2 China and France) 3 Aborted by Parties (China, UK, Luxembourg) | 1 2 Divestiture Required (UAE, China) 4 Transaction Aborted by Parties (3 China, 1 UK) 4 Terminated without remedy (2 China, 1 Taiwan, 1 Russia) | 4 Transaction Aborted by Parties (2 China, 1 Jordan, 1 Russia) 7 Terminated without remedy (3 China, 3 Russia, 1 Finland) 1 review ongoing*** | 8 Transaction Aborted by Parties (7 China, 1 Czech Republic) 3 Divestitures Required (China) 10 Terminated without remedy (5 China, 3 USA, 1 France, 1 Cyprus) 1 review ongoing |
Year | 2012-13 | 2013-14 | 2014-15 | 2015-16 | 2016-17 | 2017-18 |
Number of Reviews | 2 | 1 | 5 | 0 | 5* | 2 |
Outcome and Country of Origin of Buyer** | 1 1 Transaction Aborted by Parties (Russia) | 1 Blocked (Egypt) | 2 Divestiture Required (United Kingdom; China) 1 2 |
| 3 Divestitures Required (two China and one Cyprus) 2 | 1 |
* One review was pursuant to a court order. Although not specified in the annual report, this would have been the O-Net Communications/ITF Technologies transaction, which was the subject of a great deal of media attention and controversy. The (former Conservative) government ordered Chinese controlled O-Net Communications to divest Montreal based ITF Technologies. O-Net Communications sought judicial review. The (current Liberal) government agreed to do a new review, the result of which was that O-Net Communications was permitted to continue own ITF Technologies subject to non-public conditions.
** The outcome may have occurred in a different fiscal year but relates to a review that commenced in the identified fiscal year.
*** It is unclear whether this review remains ongoing or was concluded and, if so, what was the outcome, as no update was provided in the 2022-23 annual report or otherwise.
When considered in the context of all transactions that could have been reviewed under the national security powers, the percentage that have actually been reviewed is negligible, substantially less than 1%. However, if a national security review is conducted, there is a good chance that the result will be catastrophic to the transaction. Forty-three of the 74 reviews have resulted in the foreign investor not being able to own the target - either the transaction was blocked pre-closing, the parties aborted it during the review, or post-closing divestiture was required. Twenty-five reviews resulted in the foreign investor being permitted to own the target Canadian business subject to non-public conditions. Four reviews resulted in a clean termination, with no remedy being imposed and the foreign investor being permitted to own the Canadian business with no conditions. Finally, 1 review initiated in 2023 remains ongoing. Please note that because O-Net/ITF was reviewed twice, there have been 74 reviews of 73 transactions, and one of the "divestiture required" outcomes set out in the table above was converted to a "non-public conditions imposed" outcome.
In December 2016, the government published Guidelines on the National Security Review of Investments under the Investment Canada Act, which it updated in March 2021.
The most important aspect of the Guidelines is the following non-exhaustive list of factors the government will consider in assessing national security risks:
The Guidelines strongly encourage investors, particularly where they are state-owned or subject to state-influence, or in cases where the factors set out above may be present, to file their notification form at least 45 days before the planned closing date for the investment. The rationale behind this is that the government has 45 days from receiving a notification form to decide whether to do a national security review. While it is permissible to file a notification form up to 30 days after closing of the investment, the advantage of filing more than 45 days before closing is that doing so allows the investor to close the investment with certainty in relation to the national security review provisions - in effect, if the government has not initiated a national security review within 45 days then the investor can close the investment knowing that it will not subsequently face a potential divestiture order on national security grounds.
In 2007, the government issued guidelines to clarify how the "net benefit to Canada" test will be applied in the context of proposed investments by foreign SEOs. The government subsequently provided additional guidance with respect to the application of the net benefit to Canada test, and amended various provisions of the ICA in relation to SOEs.
Essentially, the purpose of the guidelines is to ensure that the acquired Canadian business will continue to be operated on a commercial basis, with transparent corporate governance and reporting requirements, rather than to serve the non-commercial, political objectives of a foreign state. The purpose of the amendments is to subject SOE purchasers to a lower review threshold than non-SOE purchasers.
In addition to the general ICA process, various federal and provincial statutes place additional restrictions on foreign ownership in specific industries.
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