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This article was first published in Competition Policy International – Antitrust Chronicle on September 3, 2024; for further in-depth analysis, please visit the Antitrust Chronicle®

I. Introduction

Canada has embarked on a transformative journey to fortify its competition policy landscape, hopefully ushering in a new era of regulatory vigor and market fairness. The recent amendments to the Competition Act mark a significant milestone in Canada’s commitment to fostering a competitive marketplace that benefits consumers and businesses alike. Led by the efforts of policymakers, the Competition Bureau, and competition advocates, these reforms aim to address anti-competitive practices, enhance enforcement mechanisms, and promote a culture of fair competition.Continue Reading Amendments To The Competition Act Only One Step Towards A Truly Competitive Economy

On March 4, 2024, while attending the 2024 Prospectors & Developers Association of Canada’s annual convention, Canada’s Minister of Innovation, Science and Industry[1], François-Philippe Champagne, received a question about Québec-based SRG Mining Inc.’s (“SRG”) proposed plan to redomicile to the United Arab Emirates after agreeing to sell 19.4 percent of the company to China-based Carbon ONE New Energy Group Co., Ltd. (“Carbon One”).

Despite SRG’s belief that redomiciling would obviate the need to obtain the Government of Canada’s approval of the proposed deal, Minister Champagne reacted by stating that Canada would challenge the proposed avoidance of the Government of Canada’s review: “It’s never smart to try to circumvent the rules…[The federal government is prepared to use] every tool at our disposal [to make sure Canadian law is respected].”

Shortly after Minister Champagne’s comments, SRG announced that it was no longer proceeding with the Carbon One transaction.Continue Reading Canada Threatens to Challenge SRG Proposed Redomiciling Plan Removing the Need for Investment Canada Review

On March 22, 2024, Bill C-34 received royal assent, becoming the National Security Review of Investments Modernization Act. First introduced in the House of Commons by the Minister of Innovation, Science and Industry (the “Minister”) on December 7, 2022, the National Security Review of Investments Modernization Act represents the most significant amendment to the Investment Canada Act (the “ICA”) since the introduction of national security provisions in 2009. Notably, the new legislation:

  • Creates a suspensory pre-closing filing requirement and waiting period for investments in certain (yet-to-be) prescribed sensitive sectors, such as the interactive digital media sector and the critical minerals sector, for instance;
  • Creates a new authority for the Minister to initiate national security reviews under section 25.3 of the ICA and to accept undertakings to mitigate national security risk (previously, the authority for both of the foregoing rested with the Cabinet of Canada); and
  • Increases the maximum penalty for non-compliance with the ICA to $25,000 for each day of contravention, up from $10,000.

Continue Reading The National Security Review of Investments Modernization Act Receives Royal Assent

On March 1, 2024, the Government of Canada unveiled two new foreign investment policies relating to the interactive digital media sector: one relating to national security reviews and the other to cultural investment reviews.

The policies define “interactive digital media” (“IDM”) as, without limitation, “digital content and/or an environment in which users can actively participate or that facilitates collaborative participation among multiple users for the purposes of entertainment, information or education, and commonly delivered via the Internet, mobile networks, gaming consoles or media storage devices.”Continue Reading Canada to Subject Interactive Digital Media Investments to Enhanced Scrutiny

On September 28, 2023, the House of Commons Standing Committee on Industry and Technology (“INDU”) – the committee tasked with studying the legislation and activities of Innovation, Science and Economic Development Canada – concluded its study of Bill C-34: An Act to amend the Investment Canada Act and reported its proposed amendments to the House of Commons.Continue Reading Update on proposed amendments to the Investment Canada Act

On September 28th, 2023, the Director of Investments to the Minister of Innovation, Science and Industry (the “Minister”) published the Annual Report on the administration of the Investment Canada Act (the Act) for the 2022/23 fiscal year.

During the fiscal year 2022-2023, the Investment Review Division reviewed 1,010 applications for review and notifications (which is generally in line with the five-year average). Of the 1,010 filings, five applications for review were cleared as being of likely net benefit to Canada (down from the eight applications for review approved in the fiscal year 2021-22). Notably, the average length of time to complete a net benefit review was 97 days, which exceeds the average time during the previous five years (of about 74 to 85 days). In this regard, the Annual Report notes that this should not be taken as “signalling a new trend in the timelines for net benefit reviews.”

The vast majority of notifications related to investments from the United States, with notably no investments originating from Russia.Continue Reading 2022/23 Investment Canada Act Annual Report

Canada’s Minister of Innovation, Science and Industry, the Honourable François-Philippe Champagne (the “Minister”), announced on December 7, 2022 his commitment to protecting Canada’s economic and national security. Focused on key sectors such as critical minerals and artificial intelligence, the Minister tabled Bill C-34, the National Security Review of Investments Modernizations Act, (“Bill C-34”) which significantly amends the Investment Canada Act (the “Act”) for the first time since national security provisions were introduced in 2009. Bill C-34 is directed at modernizing the Act to better guard  against economic-based security threats that may arise from foreign investment and streamlining the existing national security review process. The amendments aim to enhance transparency, support greater investor certainty, improve Canada’s visibility on investments, and ensure that Canada is prepared to take action quickly where required.
Continue Reading Canada Announces Significant National Security Changes to Investment Canada Act

On October 28, 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, 2021 and ending March 31, 2022 (the “2021/2022 fiscal year”). The Annual Report provides insight on key trends relating to foreign investment and national security reviews in Canada.
Continue Reading Canada Lays out Direct Path to National Security Review for SOE-implicated Investments in Critical Mineral Sector

On October 28, 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, 2021 and ending March 31, 2022 (the “2021/2022 fiscal year”). The Annual Report provides insight on key trends relating to foreign investment and national security reviews in Canada.
Continue Reading Investment Canada Act: 2021/22 Annual Report

As discussed in our previous post, on April 18, 2020, the Minister of Innovation, Science and Industry released a policy statement announcing that, in light of the evolving COVID-19 pandemic, certain foreign investments into Canada will be subject to enhanced scrutiny under the Investment Canada Act (the “Act”).Continue Reading Enhanced Scrutiny of Foreign State-Owned Investors / Critical Infrastructure at the Heart of Canadian National Security Concerns