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Amendment to Investment Canada Act Will Allow Greater Ministerial Disclosure

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Antitrust/Competition & Marketing Bulletin

Bill C-38, the Jobs, Growth and Long-term Prosperity Act, which was given first reading on April 26, 2012, contains a proposed amendment to the Investment Canada Act to allow the Industry Minister to publicly disclose the fact that he has sent a preliminary notice to a foreign investor that he is not satisfied that the foreign investor’s proposed investment is likely to be of net benefit to Canada.

In connection with BHP Billiton’s bid for PotashCorp in 2010, the Industry Minister found himself prohibited from commenting on the reasons for issuing such a notice when, after its issuance, BHP abandoned its bid before the Minister could make a final decision under the Act. While, in the case of a formal decision to allow or disallow an investment, the Industry Minister is expressly permitted to communicate information contained in the reasons given for such decision, there was no corresponding provision allowing such communication with respect to his issuance of a preliminary notice that he is not satisfied with the foreign investor’s proposed investment. The amendment remedies that situation; however, if the information pertains to financial, commercial, scientific or technical information, such information will not be disclosed if the Minister can be satisfied that the release of such information would be prejudicial to the person to whom the information relates.

The proposed amendments also contain provisions intended to promote foreign investor compliance with undertakings by authorizing the Minister to accept security, when offered by an investor, for payment of any penalties ordered by a court for a contravention of the Act.

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