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On February 12, 2022, the federal government proposed, in the Canada Gazette, amendments to the National Security Review of Investments Regulations (the “Regulations”). The Regulations set out the timelines of the national security review process under the Investment Canada Act (the “Act”). If ratified, the proposed amendments would create a voluntary filing mechanism for investors that do not currently have a filing obligation under the Act, and would extend the initial national security review period from 45 days to 5 years for all investments by non-Canadians that do not make a filing. Investors who choose to submit a voluntary filing will, within 45 days from the certification date of their filing, know whether the Government of Canada intends to challenge their investment. The proposed amendments will benefit businesses contemplating an investment in Canada by creating an option to achieve regulatory certainty pre-implementation.
Continue Reading Canada Proposes to Permit Voluntary Filings under National Security Provisions of its Investment Canada Act

On February 2nd, 2022, the Director of Investments issued his annual report on the administration of the Investment Canada Act (“ICA”) for the fiscal year commencing April 1, 2020 and ending March 31, 2021. The Annual Report provides insight on key trends relating to foreign investment and national security reviews in Canada.

During the period covered by the Annual Report, a total of 826 filings were certified under the ICA, representing a 20% decrease from the 1,032 filings made in the previous year. Most notably, the number of applications for review (required in the case of high-value foreign acquisitions) dropped by 67% over the prior period.Continue Reading Investment Canada Act: 2020/21 Annual Report

Competition, marketing and foreign investment law saw a number of changes in the past year. Many of these changes were in response to the continuing COVID-19 pandemic, which has significantly changed the way Canadians, businesses and government agencies operate. Despite the pandemic, the Competition Bureau (the “Bureau”) has actively continued its enforcement activity and provided a number of guidance documents to help businesses stay onside the Competition Act (the “Act”). Similarly, Canada’s Investment Review Division (“IRD”) of Innovation, Science and Economic Development Canada (“ISED”) has also responded to the challenges resulting from the pandemic.
Continue Reading Fasken’s Forecast for 2022 and Beyond: 2021’s Top 10 Trends in Canadian Competition, Marketing & Foreign Investment Law and what Businesses should expect in 2022

Under the Investment Canada Act (the “ICA”), the direct acquisition of control of a Canadian business by a non-Canadian may be subject to a pre-closing review and approval process (a “Net Benefit Review”) if a specified monetary threshold is exceeded. When officially published in the February Canada Gazette, the following thresholds for Net Benefit Reviews will be effective from January 1, 2022:
Continue Reading Investment Canada Act: New Monetary Thresholds for 2022

The Director of Investments recently issued his Investment Canada Act Annual Report for the fiscal year ended March 31, 2020.  During that fiscal year, a total of 1,032 applications for review and notifications were certified under the Investment Canada Act, being an all time high for such filings.  Of these filings, 255 were in respect of proposals to establish new businesses in Canada.  The balance of the filings were in respect of foreign acquisitions of control of existing Canadian businesses.
Continue Reading National Security Reviews Continue to Impact Investments by Non-Canadians

National security concerns have been cited by some countries as the motivation behind recent legislative and policy changes directed at regulating foreign investment. The creation of new or the bolstering of existing national security investment review regimes raises the question as to whether these changes are solely based on legitimate national security concerns or whether…

On March 24, 2021, the Minister of Innovation, Science and Industry (the “Minister”) announced updates to the Guidelines on the National Security Review of Investments (the “Guidelines”) issued under the Investment Canada Act (the “ICA”).

This first update since the Guidelines were issued on December 21, 2016 appears…

The Competition Bureau announced the 2021 transaction-size pre-merger notification threshold under the Competition Act is decreasing to C$93 million, effective February 13, 2021. Innovation, Science and Economic Development Canada also announced new, lower foreign investment review thresholds under the Investment Canada Act, effective January 1, 2021.

These thresholds are adjusted annually based on GDP formulas. As a consequence, they generally increase each year. This year’s decrease in merger review thresholds is a consequence of Canada’s economic contraction following from extensive restrictions on economic activity imposed by governments which were intended to slow the spread of COVID-19. If the economy recovers, it is likely these thresholds will increase in 2022.

Competition Act

In general terms, certain transactions that exceed prescribed thresholds under the Competition Act trigger a pre-merger notification filing requirement; such transactions cannot close until notice has been provided to the Commissioner of Competition (the “Commissioner”) and the statutory waiting period under the Competition Act has expired or has been terminated or waived by the Commissioner. Where both the “transaction-size” and “party-size” thresholds are exceeded, a transaction is considered “notifiable”.
Continue Reading 2021 Merger Review Thresholds

Competition, marketing and foreign investment law saw a number of changes in the past year. Many of these changes were in response to the continuing COVID-19 pandemic, which has changed every aspect of how Canadians, businesses and government agencies operate. Despite the pandemic, the Competition Bureau (the “Bureau”) has actively continued its enforcement activity and provided a number of guidance documents to help businesses stay onside the Competition Act (the “Act”). Similarly, Canada’s Investment Review Division also had to respond to the challenges posed by the pandemic.

Below we discuss ten key themes seen in the competition, marketing and foreign investment law space this year, and discuss what the year ahead has in store.
Continue Reading What 2020 tells us about 2021 and beyond: Fasken’s Year-End Review of the Top 10 Trends in Canadian Competition, Marketing & Foreign Investment Law

On Friday, the Foreign Investment Review Committee (“FIRC”) of the Canadian Bar Association’s (“CBA”) Competition Law Section met with representatives from the Investment Review Division (“IRD”), Innovation, Science and Economic Development Canada (“ISED”) and the Cultural Sector Investment Review (“CSIR”), Canadian Heritage. The meeting featured interesting and informative presentations from representatives from both the IRD and CSIR, followed by a Q&A. Outlined below are some of the highlights.

  1. Highlights from the IRD’s Presentation

(a) Net Benefit to Canada Review Threshold for UK Investors

The United Kingdom (“UK”), which has left the European Union (“EU”), and by extension the Canada-European Union Comprehensive Economic and Trade Agreement (“CETA”), is currently in a transition period which is set to end on December 31, 2020. During the transition period, UK investors have benefited from the net benefit to Canada review threshold available to trade agreement investors. As of January 1, 2021, investments into Canada by UK investors will be subject to the lower threshold for World Trade Organisation  (“WTO”) investors.
Continue Reading Highlights from the Foreign Investment Review Committee’s Town Hall with the Investment Review Division and Cultural Sector Investment Review