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S-257
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Investment Canada Act
Explanatory Notes
First Session, Forty-second Parliament,
64-65-66-67 Elizabeth II, 2015-2016-2017-2018
SENATE OF CANADA
BILL S-257
An Act to amend the Investment Canada Act (mandatory national security review of investments by foreign state-owned enterprises)
FIRST READING, December 11, 2018
THE HONOURABLE SENATOR Ngo
4211739
Summary
This enactment amends the Investment Canada Act to provide for the mandatory review, under part IV.‍1, of investments made by foreign state-owned enterprises.
Available on the Senate of Canada website at the following address:
www.sencanada.ca/en
1st Session, 42nd Parliament, 
64-65-66-67 Elizabeth II, 2015-2016-2017-2018
SENATE OF CANADA
BILL S-257
An Act to amend the Investment Canada Act (mandatory national security review of investments by foreign state-owned enterprises)
R.‍S.‍, c. 28 (1st supp.‍)
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
Investment Canada Act
1 (1) Subsection 21(2) of the Investment Canada Act is replaced by the following:
Extension
(2) Subject to subsection (3), if, before the end of the 45-day period referred to in subsection (1), a notice is sent under subsection 25.‍2(1) in respect of the investment, the period during which the Minister may send the notice referred to in subsection (1) expires 30 days after the end of the prescribed period referred to in subsection 25.‍3(1) or (1.‍2), as the case may be, or at the end of any further period that the Minister and the applicant agree on.
(2) The portion of subsection 21(3) of the Act before paragraph (a) is replaced by the following:
Extension
(3) Subject to subsections (4) and (5), if, before the end of the 45-day period referred to in subsection (1), a notice is sent under subsection 25.‍2(1) in respect of the investment and if, in respect of the investment, an order is made under subsection 25.‍3(1) or (1.‍2), the period during which the Minister may send the notice referred to in subsection (1) expires
(3) Subsection 21(4) of the Act is replaced by the following:
Extension
(4) If, before the end of the 45-day period referred to in subsection (1), a notice is sent under subsection 25.‍2(1) in respect of the investment and if, in respect of the investment, an order is made under subsection 25.‍3(1) or (1.‍2) and a notice under paragraph 25.‍3(6)‍(b) is sent, the period during which the Minister may send the notice referred to in subsection (1) expires 30 days after the day on which the notice under that paragraph was sent or at the end of any further period that the Minister and the applicant agree on.
(4) The portion of subsection 21(5) of the Act before paragraph (a) is replaced by the following:
Extension
(5) If, before the end of the 45-day period referred to in subsection (1), a notice is sent under subsection 25.‍2(1) in respect of the investment and if an order is made under subsection 25.‍3(1) or (1.‍2) in respect of the investment and the Minister refers the investment to the Governor in Council under paragraph 25.‍3(6)‍(a) or subsection 25.‍3(7), the period during which the Minister may send the notice referred to in subsection (1) expires either 30 days after the earlier of the following days or at the end of any further period that the Minister and the applicant agree on:
(5) The portion of subsection 21(6) of the Act before paragraph (a) is replaced by the following:
Extension
(6) Subject to subsections (7) and (8), if, before the end of the 45-day period referred to in subsection (1), an order is made under subsection 25.‍3(1) or (1.‍2) in respect of the investment, the period during which the Minister may send the notice referred to in subsection (1) expires
(6) Subsection 21(7) of the Act is replaced by the following:
Extension
(7) If, before the end of the 45-day period referred to in subsection (1), an order is made under subsection 25.‍3(1) or (1.‍2) in respect of the investment and if, in respect of the investment, a notice is sent under paragraph 25.‍3(6)‍(b), the period during which the Minister may send the notice referred to in subsection (1) expires 30 days after the day on which the notice under that paragraph was sent or at the end of any further period that the Minister and the applicant agree on.
(7) The portion of subsection 21(8) of the Act before paragraph (a) is replaced by the following:
Extension
(8) If, before the end of the 45-day period referred to in subsection (1), an order is made under subsection 25.‍3(1) or (1.‍2) in respect of the investment and if the Minister refers the investment to the Governor in Council under paragraph 25.‍3(6)‍(a) or subsection 25.‍3(7), the period during which the Minister may send the notice referred to in subsection (1) expires either 30 days after the earlier of the following days or at the end of any further period that the Minister and the applicant agree on:
2 (1) Subsection 25.‍2(1) of the Act is replaced by the following:
Notice
25.‍2 (1) If the Minister has reasonable grounds to believe that an investment by a non-Canadian could be injurious to national security or is reviewable under subsection 25.‍3(1.‍1), the Minister may, within the prescribed period, send to the non-Canadian a notice that an order for the review of the investment may be made under subsection 25.‍3(1) or (1.‍2), as the case may be.
(2) Paragraph 25.‍2(2)‍(a) of the Act is replaced by the following:
(a) a notice under paragraph 4(a) indicating that no order for the review of the investment will be made under subsection 25.‍3(1) or (1.‍2), as the case may be; or
(3) Paragraph 25.‍2(4)‍(a) of the Act is replaced by the following:
(a) a notice, which shall be sent within the prescribed period, indicating that no order for the review of the investment will be made under subsection 25.‍3(1) or (1.‍2), as the case may be; or
3 Subsection 25.‍3(2) of the Act is replaced by the following:
Mandatory review: state-owned enterprise
(1.‍1) An investment shall be reviewed under this Part if the Minister, after consultation with the Minister of Public Safety and Emergency Preparedness, determines that the investment is being implemented or proposed by a state-owned enterprise.
Order
(1.‍2) If the Minister makes the determination referred to in subsection (1.‍1), the Minister shall make an order within the prescribed period for the review of the investment.
Notice
(2) The Minister shall, without delay after an order has been made under subsection (1) or (1.‍2), send to the non-Canadian making the investment and to any person or entity from which the Canadian business or the entity referred to in paragraph 25.‍1(c) is being acquired, a notice indicating that an order for the review of the investment has been made and advising them of their right to make representations to the Minister.
4 Section 25.‍6 of the Act is replaced by the following:
Decisions and orders are final
25.‍6 Decisions and orders of the Governor in Council and the Minister under this Part are final and binding and, except for judicial review under the Federal Courts Act, are not subject to appeal or to review by any court.
5 Subsection 35(1.‍1) of the Act is replaced by the following:
Prescribing periods
(1.‍1) Any regulations prescribing a period for the purposes of subsections 25.‍2(1), 25.‍3(1) and (1.‍2) may provide for a separate period depending on whether it is in respect of an investment referred to in section 11 or 14 or any other investment and, for the purposes of subsection 25.‍3(1), depending on whether a notice has or has not been issued under either subsection 25.‍2(1) or (1.‍2).
Published under authority of the Senate of Canada
explanatory notes
Investment Canada Act
Clause 1: (1) Existing text of subsection 21(2):
(2) Subject to subsection (3), if, before the end of the 45-day period referred to in subsection (1), a notice is sent under subsection 25.‍2(1) in respect of the investment, the period during which the Minister may send the notice referred to in subsection (1) expires 30 days after the end of the prescribed period referred to in subsection 25.‍3(1) or at the end of any further period that the Minister and the applicant agree on.
(2)  Existing text of relevant portion of subsection 21(3):
(3) Subject to subsections (4) and (5), if, before the end of the 45-day period referred to in subsection (1), a notice is sent under subsection 25.‍2(1) in respect of the investment and if, in respect of the investment, an order is made under subsection 25.‍3(1), the period during which the Minister may send the notice referred to in subsection (1) expires
(3)  Existing text of subsection 21(4):
(4) If, before the end of the 45-day period referred to in subsection (1), a notice is sent under subsection 25.‍2(1) in respect of the investment and if, in respect of the investment, an order is made under subsection 25.‍3(1) and a notice under paragraph 25.‍3(6)‍(b) is sent, the period during which the Minister may send the notice referred to in subsection (1) expires 30 days after the day on which the notice under that paragraph was sent or at the end of any further period that the Minister and the applicant agree on.
(4)  Existing text of relevant portion of subsection 21(5):
(5) If, before the end of the 45-day period referred to in subsection (1), a notice is sent under subsection 25.‍2(1) in respect of the investment and if an order is made under subsection 25.‍3(1) in respect of the investment and the Minister refers the investment to the Governor in Council under paragraph 25.‍3(6)‍(a) or subsection 25.‍3(7), the period during which the Minister may send the notice referred to in subsection (1) expires either 30 days after the earlier of the following days or at the end of any further period that the Minister and the applicant agree on:
(5)  Existing text of relevant portion of subsection 21(6):
(6) Subject to subsections (7) and (8), if, before the end of the 45-day period referred to in subsection (1), an order is made under subsection 25.‍3(1) in respect of the investment, the period during which the Minister may send the notice referred to in subsection (1) expires
(6)  Existing text of subsection 21(7):
(7) If, before the end of the 45-day period referred to in subsection (1), an order is made under subsection 25.‍3(1) in respect of the investment and if, in respect of the investment, a notice is sent under paragraph 25.‍3(6)‍(b), the period during which the Minister may send the notice referred to in subsection (1) expires 30 days after the day on which the notice under that paragraph was sent or at the end of any further period that the Minister and the applicant agree on.
(7)  Existing text of relevant portion of subsection 21(8):
(8) If, before the end of the 45-day period referred to in subsection (1), an order is made under subsection 25.‍3(1) in respect of the investment and if the Minister refers the investment to the Governor in Council under paragraph 25.‍3(6)‍(a) or subsection 25.‍3(7), the period during which the Minister may send the notice referred to in subsection (1) expires either 30 days after the earlier of the following days or at the end of any further period that the Minister and the applicant agree on:
Clause 2: (1) Existing text of subsection 25.‍2(1):
25.‍2 (1)  If the Minister has reasonable grounds to believe that an investment by a non-Canadian could be injurious to national security, the Minister may, within the prescribed period, send to the non-Canadian a notice that an order for the review of the investment may be made under subsection 25.‍3(1).
(2) Existing text of relevant portions of subsection 25.‍2(2):
(2) If a non-Canadian has not implemented a proposed investment when they receive a notice under subsection (1), they shall not implement the investment unless they receive
(a) a notice under paragraph (4)‍(a) indicating that no order for the review of the investment will be made under subsection 25.‍3(1);
(3) Existing text of relevant portions of subsection 25.‍2(4):
(4) The Minister shall send to the non-Canadian
(a) a notice, which shall be sent within the prescribed period, indicating that no order for the review of the investment will be made under subsection 25.‍3(1); or
Clause 3: Existing text of subsection 25.‍3(2):
(2) The Minister shall, without delay after the order has been made, send to the non-Canadian making the investment and to any person or entity from which the Canadian business or the entity referred to in paragraph 25.‍1(c) is being acquired, a notice indicating that an order for the review of the investment has been made and advising them of their right to make representations to the Minister.
Clause 4: Existing text of section 25.‍6:
25.‍6 Decisions and orders of the Governor in Council, and decisions of the Minister, under this Part are final and binding and, except for judicial review under the Federal Courts Act, are not subject to appeal or to review by any court.
Clause 5: Existing text of subsection 35(1.‍1):
(1.‍1) Any regulations prescribing a period for the purposes of subsections 25.‍2(1) and 25.‍3(1) may provide for a separate period depending on whether it is in respect of an investment referred to in section 11 or 14 or any other investment and, for the purposes of subsection 25.‍3(1), depending on whether a notice has or has not been issued under subsection 25.‍2(1).
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