Dual Filing Requirements – Guidelines

Department of Industry
Department of Canadian Heritage

Investment Canada Act

Guidelines — Filing Requirements for Investments Involving Businesses Engaged in Both Cultural and Non-cultural Business Activities

The following guidelines are issued by the Minister of Canadian Heritage and the Minister of Industry. The Minister of Canadian Heritage is responsible for the administration of Parts II to VI, except for Part IV.1, of the Act relating to the business activities prescribed by the Governor in Council under paragraph 15(a) of the Act. The Minister of Industry is responsible for the administration of the Investment Canada Act (the "Act") for all matters not transferred to the Minister of Canadian Heritage.

The prescribed business activities for which the Minister of Canadian Heritage is responsible are set out in Schedule IV to the Investment Canada Regulations (the "Regulations") and, for the purposes of the present guidelines, will be referred to as "cultural business" while all other business activities will be referred to as "non-cultural business".

These guidelines are made under the authority of section 38 of the Act, to assist a non-Canadian in complying with filing requirements under the Act where the investment includes both a cultural business and a non-cultural business.

The filing requirements described in these guidelines apply irrespective of the proportions of the non-cultural business and cultural business included in an investment. The dollar values indicated are the total value or enterprise value, as the case may be, of the assets of the Canadian business, calculated as prescribed in the Regulations.

In all cases requiring notification to Canadian Heritage, the investment may become subject to review should the Governor in Council so order, pursuant to section 15 of the Act.

The words, expressions or terms used in the present guidelines shall have the meaning ascribed to them in the Act, unless otherwise indicated.

Investment to Establish a New Canadian Business

1. Where a non-Canadian establishes a new Canadian business, the non-Canadian shall file notifications with both Industry Canada and Canadian Heritage.

Direct Acquisitions of Control of a Canadian Business

2. Where a non-Canadian acquires control of a Canadian business pursuant to paragraphs 28(1)(a), 28(1)(b), 28(1)(c) and subparagraph 28(1)(d)(i) of the Act, the filing requirements are as follows:

(1) Where the non-Canadian is not a state-owned enterprise and: (i) is a World Trade Organization ("WTO") investor; or (ii) is a non-Canadian, other than a WTO investor ("non-WTO investor"), acquiring a Canadian business controlled by a WTO investor immediately prior to the implementation of an investment, and

(a) where the value of the assets of the entity carrying on the Canadian business calculated in the manner set out in section 3.1 of the Regulations ("total asset value of the Canadian business") is less than $5 million and the enterprise value of the assets of the entity carrying on the Canadian business calculated in the manner set out in sections 3.4, 3.5 or 3.6 of the Regulations, as the case may be, ("enterprise value of the Canadian business") is less than the amount determined pursuant to subsection 14.1(2) of the Act for the purpose of paragraph 14.1(1)(e) of the Act ("the annual non-SOE WTO threshold value"), the non-Canadian shall file a notification with both Industry Canada and Canadian Heritage;

(b) where the "total asset value of the Canadian business" is $5 million or more and the enterprise value of the Canadian business is less than the value of "the annual non-SOE WTO threshold value", the non-Canadian shall file a notification with Industry Canada and an application for review with Canadian Heritage;

(c) where the total asset value of the Canadian business is $5 million or more and the enterprise value of the Canadian business is equal to or greater than the value of the annual non-SOE WTO threshold value, the non-Canadian shall file an application for review with both Industry Canada and Canadian Heritage; or

(d) where the "total asset value of the Canadian business" is less than $5 million and the enterprise value of the Canadian business is equal to or greater than the value of "the annual non-SOE WTO threshold value", the non-Canadian shall file an application for review with Industry Canada and a notification with Canadian Heritage.

2) Where the non-Canadian is a WTO investor that is a state-owned enterprise, or is a non-WTO investor that is a state-owned enterprise and acquiring a Canadian business controlled by a WTO investor immediately prior to the implementation of an investment, and

(a) where the value of the assets of the entity carrying on the Canadian business calculated in the manner set out in section 3.1 of the Regulations ("total asset value of the Canadian business") is less than $5 million, the non-Canadian shall file a notification with both Industry Canada and Canadian Heritage;

(b) where the total asset value of the Canadian business is $5 million or more but is less than the value calculated pursuant to subsection 14.1(2) of the Act for the purpose of subsection14.1(1.1) ("annual SOE WTO threshold value"), the non-Canadian shall file a notification with Industry Canada and an application for review with Canadian Heritage; or

(c) where the total asset value of the Canadian business is equal to or greater than the value of "the annual SOE WTO threshold value", the non-Canadian shall file an application for review with both Industry Canada and Canadian Heritage.

(3) Where a non-Canadian is a non-WTO investor acquiring a Canadian business other than one controlled by a WTO investor immediately prior to the implementation of an investment, and

(a) where the total asset value of the Canadian business is less than $5 million, the non-Canadian shall file a notifications with both Industry Canada and Canadian Heritage; and

(b) where the total asset value of the Canadian business is $5 million or more, the non-Canadian shall file an application for review with both Industry Canada and Canadian Heritage.

Indirect Acquisitions of Control of a Canadian Business

3. Where a non-Canadian acquires control of a Canadian business pursuant to subparagraph 28(1)(d)(ii) of the Act, the filing requirements are as follows:

(1) Where the non-Canadian is a WTO investor or a non-WTO investor acquiring a Canadian business controlled by a WTO investor immediately prior to the implementation of an investment, and

(a) where the total asset value of the Canadian business,

(i) amounts to more than 50 percent of the value of the assets of all entities the control of which is acquired in a transaction of which the acquisition of control of the Canadian business forms part, as provided under subsection 14(2) of the Act ("worldwide assets") and where the total asset value of the Canadian business is $5 million or more; or

(ii) amounts to 50 percent or less of the value of the worldwide assets, and where the total asset value of the Canadian business is $50 million or more;

the non-Canadian shall file an application for review with Canadian Heritage and a notification with Industry Canada.

(b) where

(i) subparagraph (a)(i) applies except that the total asset value of the Canadian business is less than $5 million; or

(ii) subparagraph (a)(ii) applies except that the total asset value of the Canadian business is less than $50 million,

the non-Canadian shall file a notification with both Canadian Heritage and Industry Canada.

non-Canadian is a non-WTO investor acquiring a Canadian business other than one controlled by a WTO investor immediately prior to the implementation of an investment, and

(a) where the total asset value of the Canadian business

(i) amounts to more than 50 percent of the value of the worldwide assets and where the total asset value of the Canadian business is $5 million or more; or

(ii) amounts to 50 percent or less of the value of the worldwide assets and where the total asset value of the Canadian business is $50 million or more,

the non-Canadian shall file an application for review with both Industry Canada and Canadian Heritage,

(b) where

(i) subparagraph (a)(i) applies except that the total asset value of the Canadian business is less than $5 million; or

(ii) subparagraph (a)(ii) applies except that the total asset value of the Canadian business is less than $50 million,

the non-Canadian shall file a notification with both Industry Canada and Canadian Heritage.

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