Frequently asked questions

A non-Canadian is anyone who is not a Canadian citizen or a permanent resident, within the meaning of the Immigration and Refugee Protection Act (i.e., a person who has been ordinarily resident in Canada for not more than one year after the time at which he/she first became eligible to apply for Canadian citizenship).

For the purposes of the Act, a non-Canadian includes any entity that is not controlled or beneficially owned by Canadians.

If you are a non-Canadian and you propose to establish a new Canadian business or to acquire an existing Canadian business, then you MUST either file a Notification or an Application for Review of the investment unless a specific exemption applies (s.10).

If you are a non-Canadian then you must file a notification each and every time you commence a new business activity in Canada and each time you acquire control of an existing Canadian business where the establishment or acquisition of control is not a reviewable transaction.

A Notification must be filed no later than thirty days after the implementation of the investment.

Investments described in section 25.1(c) are subject to national security review. The government has up to five years after the implementation of such an investment to make an Order for national security review under section 25.3. An investor may wish to obtain regulatory certainty by filing a voluntary notification, triggering the same statutory deadlines as a mandatory filing.

Investors are strongly encouraged, particularly where they are state-owned or subject to state-influence, or in cases where the factors listed in the Guidelines on the National Security Review of Investments may be present, to file a notification, whether voluntary or mandatory, at least 45 days prior to planned implementation, and at least 75 days prior to commercial closing where an application of net benefit review is required.

Investment Review Division officials are available to discuss your investment proposals and to answer questions about which filing may be required.

It is recommended the application filing should be made at least 75 days prior to a planned implementation or commercial closing, to allow for the full regulatory time period for review. Note that standard practice is that filings received after 5pm are deemed received the next business day.

1. Private sector WTO investments
2. Private sector trade agreement investments
3. State-owned enterprise WTO investments
4. Non-WTO investments and Investments in a cultural business

Under the Act, control of an existing Canadian business may be acquired through the acquisition of either voting interests or assets.

With respect to a corporation, an acquisition of control is presumed to occur when a non-Canadian or a non-Canadian group acquires one-third or more of the voting shares of the corporation, although the presumption can be rebutted by evidence that the non-Canadian or group does not have control.

With respect to a corporation, partnership, trust or joint venture, the acquisition of a majority of the voting interests is an acquisition of control of that entity.

Additionally, a non-Canadian can acquire control of a Canadian business by acquiring all or substantially all of the assets used in carrying on that business in Canada.

Yes. The Act allows the federal government to conduct a national security review of any foreign investment, regardless of its value and whether it is subject to the mandatory filing requirements of the Act.

In August 2022, the government introduced a new voluntary filing mechanism to allow an investor making non-control or minority investments to gain regulatory certainty prior to implementing an investment that would not otherwise be subject to the mandatory filings requirement of the Act.

This new mechanism creates a "safe harbour" through voluntarily filing, particularly where investments include potential national security factors as set out in the National Security Guidelines. Where a voluntary filing is made, the initial review period is 45 days from the date the filing is certified as complete. Otherwise, when no voluntary filing is submitted, the review period expires five years from the date of implementation of an investment.

In general, for acquisitions of control of a Canadian business that is publicly traded, the enterprise value of the assets is calculated as the market capitalization of the entity, plus its total liabilities excluding its ordinary course liabilities, minus the entity's cash and cash equivalents.

The enterprise value for a Canadian business that is not publicly traded is calculated as its total acquisition value, plus its total liabilities excluding its ordinary course liabilities, minus its cash and cash equivalents.

The enterprise value of a Canadian business that is acquired through an asset acquisition is calculated as its total acquisition value, plus the assumed liabilities, minus its cash and cash equivalents. These are determined based on the transaction documents that are used to implement the investment.

For specific details consult sections 3.3, 3.4 and 3.5 of the Investment Canada Regulations.

With respect to investments related to cultural industries, the Department responsible for the administration of the Act is the Department of Canadian Heritage. The guidelines regarding dual filing requirements for investments where the investment includes both a cultural business and a non-cultural business are issued to assist a non-Canadian in complying with filing requirements under the Act.

Every effort is made to process applications for review as quickly as possible. Under the Act, the Minister has 45 days to determine whether or not to allow the investment. The Minister can unilaterally extend the 45 day period by an additional 30 days by sending a notice to the investor prior to the expiration of the initial 45 day period. Further extensions are permitted if both the investor and the Minister agree to the extension. If no approval or notice of extension is received within the applicable time then the investment is deemed approved. It is not unusual for the Minister to extend the initial 45 day review period by an additional 30 days to permit full consideration of the investment. In the case of investments in cultural businesses, the review will usually require at least 75 days to complete (ss.21, 22, 23).

The Investment Review Division general inbox (investmentcanada-investissementcanada@ised-isde.gc.ca) and phone line (1-343-291-1887) is typically monitored from 9am to 5pm, Monday to Friday. Where possible, filings should be submitted within these hours, or certification of completeness may be delayed. Given the transactional nature of the work and the strict, statutory deadlines, however, staff may be in a position to receive submissions or send notices outside normal business hours.

The Investment Review Division is not open on holidays*. When an investor is required to make a filing or other submission, or is to receive a notice or other response, on a holiday, that filing or sending of notice can occur on the next business day.

Note: * Holidays include: Saturdays, Sundays, New Year's Day, Good Friday, Easter Monday, Victoria Day, Canada Day, Civic Holiday, Labour Day, National Day for Truth and Reconciliation, Thanksgiving Day, Remembrance Day, Christmas Day and Boxing Day. Furthermore, if New Year's Day, Canada Day, National Day for Truth and Reconciliation or Remembrance Day occur on a weekend, the following Monday is a holiday; if Christmas Day occurs on a Friday, the following Monday is a holiday; and, if Christmas Day occurs on a weekend, the following Monday and Tuesday are a holiday.

Generally, a reviewable investment may not be implemented prior to the investor having received a decision from the Minister that the investment is of "net benefit" to Canada. There are three exceptions:

1. Where the Minister is satisfied that a delay in implementing the investment would result in undue hardship to the investor or would jeopardize the operations of the Canadian business and the Minister has sent a notice to the investor permitting implementation of the investment prior to completion of the review process;
2. Where the investment is implemented as the result of an acquisition of control of a corporation incorporated outside of Canada. Pursuant to Canada's international commitments, indirect acquisitions by or from WTO investors are not reviewable; and
3. Where the investment is not normally reviewable, but the Government exercises its authority by Order-in-Council to review the investment because the investment involves a Schedule IV business activity (cultural heritage or national identity).

In determining whether an investment is of "net benefit", the Minister will consider the following factors:

1. the effect on the level of economic activity in Canada, on: employment, resource processing, the utilization of parts and services produced in Canada, and exports from Canada;
2. the degree and significance of participation by Canadians in the Canadian business or new Canadian business and in any industry or industries in Canada;
3. the effect of the investment on productivity, industrial efficiency, technological development, product innovation and product variety in Canada;
4. the effect of the investment on competition within any industry in Canada;
5. the compatibility of the investment with national industrial, economic and cultural policies; and
6. the contribution of the investment to Canada's ability to compete in world markets.

The investor should address each of these factors and provide supporting documentation and financial data when submitting an application for review. Depending upon the nature of and the circumstances surrounding the investment, some of the above factors will be given more weight than others. The more specific the investor's plans and/or undertakings which address the above factors, the greater the likelihood a speedy approval will be obtained.

If the Minister advises that he/she is not satisfied that the investment represents a "net benefit" to Canada, the Act provides an opportunity for the investor to make additional representations and undertakings which would demonstrate the "net benefit" of the investment. Ultimately, if the Minister remains unsatisfied, a notice will be sent to the investor advising of the Minister's decision and the investor will be prohibited from implementing the investment or if the investment has already been implemented the investor will be required to divest itself of the investment (ss. 23, 24).

An investor may seek an opinion from the Minister or Director of Investments with respect to any matter of interpretation of the Investment Canada Act. Once an opinion is provided, the opinion is binding upon the Minister and the Director for so long as the material facts on which the opinion was based remain substantially unchanged. Opinions are generally sought in respect to the status of an individual or entity as a Canadian, general questions of interpretation, and whether or not there are grounds for an early implementation of the investment (s. 37).

While other federal government departments and provincial governments are regularly consulted during the review process, representations are not solicited from any other persons. However, where unsolicited representations are received that could have an adverse bearing on the determination of net benefit, applicants will be advised of the substance of those representations and given an opportunity to respond to them. The identity of persons making third party representations will not be disclosed to the applicant. Information provided to the Government by the applicant will not be divulged to a third party intervenor without the consent of the applicant.

Where relevant to the factors used in the determination of net benefit, the Minister will be advised both of any outside representations made with respect to an investment and of any response to those representations made by the applicant.

All information received by ISED and its officials in relation to an investor or a Canadian business is treated as privileged and confidential information and may not be disclosed except in relation to the administration of the Act or with the consent of the parties to whom the information pertains. The ICA contains very rigid confidentiality provisions.

The confidentiality provisions are meant to encourage investors to share information with the appropriate ISED officials to make the review process more efficient for all parties and to allow a provider of information to be secure in the knowledge that the sensitive business information provided will not be misused or indiscreetly communicated.

In addition to the restrictions on disclosure of information obtained under the ICA, the confidentiality provisions prohibit disclosure of the fact that a particular investment may or may not be under review, unless specific authorization is obtained from ISED officials.

The recent announcement of three final orders made under section 25.4(1) of the ICA is a change in procedure as the government has traditionally not publicly divulged decisions of this nature, despite having the authority to do so. This change is part of overall efforts to modernize and improve the administration of Canada's investment review regime. For greater transparency, such decisions will continue to be announced going forward, along with net benefit review decisions which were always disclosed. The decisions page on this website is updated regularly.

For more detailed information or questions on specific matters, investors and their representatives are encouraged to contact the Investment Review Division directly.