Annual report

From: Innovation, Science and Economic Development Canada

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Cat. No. Iu1-15E-PDF
ISSN: ISSN 2291-6768
Investment Canada Act - 2018–19 Annual Report catalogue number: Iu1-15E-PDF

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© Her Majesty the Queen in Right of Canada, as represented by the Minister of Innovation, Science and Economic Development Canada, 2017

Aussi offert en français sous le titre Loi sur Investissement Canada – Rapport annuel 2018-2019

2018–2019

Table of Contents

Message from the Director of Investments to the Minister of Innovation, Science and Economic Development


Message from the Director of Investments to the Minister of Innovation, Science and Economic Development

Dear Minister:

I am pleased to present to you the Annual Report on the administration of the Investment Canada Act (ICA or the Act) for fiscal year 2018–19.

The Act continues to play an important role in encouraging investments from global companies that will contribute to innovation, growth, and job creation in Canada. Over fiscal year 2018–19, foreign direct investment (FDI) inflows and cross-border mergers and acquisitions activity in Canada increased, in contrast with decreases in FDI worldwide.

The increased investment flows to Canada translated into an all-time high number of filings under the ICA in 2018–19. Sustained outreach and transparency efforts to inform Canadian businesses, investors, their advisors and other levels of Government of the ICA review process and obligations contributed to the higher number of filings as well.

These outreach initiatives have also led to a notable change and maturity in practice among external advisors to better account for the national security review process under the Act in planning investments in Canada. Indeed, this was one of the policy objectives underlying the Guidelines on the National Security Review of Investments published in 2016 and 2017 amendments to the ICA to require annual public reporting on the administration of the national security review provisions. We are encouraged to see the results of these efforts.

In addition to the continuing evolution of practice under the ICA, fiscal year 2018–19 saw increased international policy attention on national security concerns associated with foreign investment. Canada has had a legal framework with broad national security review authorities in place since 2009, and has steadily increased its application over the ensuing years as our FDI profile has diversified; in recent years, our comparator jurisdictions have recognized the need for a regime, and many are considering introducing new legislation, or expanding existing authorities. At the same time, the policy discourse has emphasized a foundational commitment to maintaining an open investment climate for positive foreign investment.

In this regard, in fiscal year 2018–19 there were nine applications for net benefit review all of which were approved. These reviews helped to ensure that the most significant investments to the Canadian economy will promote employment opportunities for Canadians, innovation and competition in Canada. These nine investments, as well as all other investments whether or not filings were required were subject to national security review. Of these, seven investments required an order by the Governor-in-Council under section 25.3 for extended review under the national security provisions of the Act. The characteristics of these investments and the outcomes of the reviews are provided in this Report.

Over the coming year, I look forward to continuing to support the administration of the Act in a manner that encourages investment, economic growth and employment opportunities in Canada while protecting Canada's national security.

Yours sincerely,

David McGovern,
Director of Investments


Introduction

The Act is the Government’s primary mechanism for reviewing foreign investment in Canada. Applied to a broad range of investments across all sectors, it has two primary purposes: to review significant acquisitions of control to ensure they are likely to be of net economic benefit to Canada, and to review investments that could be injurious to national security. Under section 38.1 of the Act, the Director of Investments is required to submit a report to the Minister for each fiscal year on the administration of the Act, which is to be made available to the public. This is the Annual Report for fiscal year 2018–19.

Net Benefit

A net benefit review is required under the Act when a non-Canadian investor seeks to acquire control of an existing Canadian business valued at or above the relevant threshold. The investment cannot be implemented unless the Minister is satisfied that the investment is likely to be of net benefit to Canada. The threshold levels are indexed to annual changes in Canada’s gross domestic product, and accordingly, on January 1, 2019, the threshold for review increased from $1 billion to $1.045 billion in Enterprise Value for private-sector investors from World Trade Organization (WTO) member countries and from $1.5 billion to $1.568 billion for private-sector investors from free trade agreement partners. For state-owned enterprises (SOEs) from WTO member countries, the relevant threshold increased to $416 million in Asset ValueEndnotei.

In making a determination of likely net benefit, the Minister considers the six factors set out in the Act:

  1. the investment's effect on the level and nature of economic activity in Canada, including employment, resource processing, and the utilization of parts, components and services;
  2. the degree and significance of participation by Canadians in the Canadian business;
  3. the investment's effect on productivity, industrial efficiency, technological development, and product innovation and variety;
  4. the investment's effect on competition;
  5. its compatibility with industrial, economic and cultural policies; and
  6. its contribution to Canada's ability to compete in world markets.

In addition to the factors set out in the Act, the Minister has also issued Guidelines about how the Act’s provisions are applied in specific circumstances, including specific guidelines on the net benefit assessment of investments by investors that are owned, controlled or influenced by a foreign stateEndnoteii. For investments by a State Owned Enterprise (SOE), the Minister takes into account the governance and commercial orientation of the investor, and for commitments to transparent and commercial operations.

No net benefit review is required for acquisitions of control of Canadian businesses valued below the relevant thresholds. However, investors are required to submit a notification of the acquisition of control. A notification is also required to be filed whenever an investor from a WTO member country indirectly acquires control of an existing Canadian business, or when a non-Canadian investor makes an investment to establish a new Canadian business. An indirect acquisition is an acquisition of a foreign company that has Canadian subsidiaries. A notification is also required in cases where an international investor starts a new business, or acquires control of a Canadian business valued below the net benefit review thresholdEndnoteiii.

National Security

In 2009, provisions were introduced to the Act to allow for reviews of investments that could injure Canada’s national security. These provisions, in Part IV.1 of the Act, give the Governor-in-Council (GiC) the authority to take any measure related to a foreign investment that it considers advisable to protect national security, including:

All investments by non-Canadians into Canada are subject to a multi-step national security review process under these provisions. This includes investments where no application for net benefit review or notification is required, such as the acquisition of less than control of a Canadian entity.

Highlights from Fiscal Year 2018–19

Activities under the Investment Canada Act in 2018–19

Investment Filings under the Act

The following section provides information on the scope, scale and origin of investments by non-Canadians in Canada over the last fiscal year that were subject to the filing requirements in the Act.

The report distinguishes between “Enterprise Value” and “Asset Value”. The value of an investment is calculated in one of these two ways, depending on the nature of the investment. For direct investments by private sector investors from WTO member countries, the “Enterprise Value” of the Canadian business to be acquired is calculated to determine if the investment exceeds the threshold for a net benefit review. Enterprise Value is a calculation that takes into account market value, debt and cash. The value of the investment is calculated using the “Asset Value” of the Canadian business when an investor is establishing a new business, is a state-owned enterprise or non-WTO member, or is investing indirectly. Asset value is the value of the assets according to the business' financial statements (book value).

Total Investments

In fiscal year 2018—19, there was a total of 962 certified notifications and approved applications under the Act, with a total Asset Value of $41.24 billion and a total Enterprise Value of $84.73 billionEndnotev. Acquisitions are recorded by the Enterprise Value of the Canadian business to be acquired or the Asset Value based on its most recent audited financial statements. Figure 1 shows the breakdown of investments across a range of Asset Values and Enterprise Values

Of the total number of investments, 55% (529) were measured by Enterprise Value, and 45% (433 investments) by Asset Value. Similar to last year, of these asset valuation transactions, the vast majority (approximately 90 percent) were valued at or below $100 million. The Enterprise Value investments reflect a much more varied range of values, with the largest segment (228 out of 529) in the $10 million—$100 million dollar range.

Figure 1: Number of investment filings by value

Number of investment filings by value

Note: Categories include the highest bound, and exclude the lowest. e.g. investments worth exactly 1M dollars are counted in the “0-1M$” category.

Description of Figure 1: Number of investment filings by value
Figure 1: number of investment filings by value
Asset Value Enterprise Value
0-1M$ 243 67
1M$-10M$ 89 149
10M$-100M$ 65 228
100M$-500M$ 21 60
500M$-1B$ 7 10
Over 1B$ 6 13
433 529

Applications for Review

An application for net benefit review is required for acquisitions of control of a Canadian business valued above the relevant threshold. As noted above, in fiscal year 2018–19, the threshold above which net benefit review and approval is required before an investment can be implemented increased to $1.045 billion for private-sector investments from WTO-member countries and to $1.568 billion for private-sector investors from trade agreement partners. This meant net benefit reviews were focused on those investments that are most significant to the economy and lessened the regulatory burden for international investors and Canadian businesses involved in smaller transactions.

As such, applications for review received in 2018–19 continued to be fewer than in years past. An average of 17 applications for review were approved over 2014-15 to 2016-17, while 9 applications for review were approved each in 2017–18 and in 2018–19 (Figure 2). The total value for the eight applications in the last fiscal year totaled $21.48 billion in Enterprise ValueEndnotevi. The statutory timeframe for net benefit reviews is 45 days with a potential additional 30 days if needed. In 2018–19, the actual average length of review was 72 days from certification to approval, with a median review period of 64 days. The average was affected by one review that was longer than usual (182 days), with the consent of the investor. This year’s average and median was very similar to those in 2017–18, with 77 days and 72 days respectively.

Figure 2: Net Benefit Applications Approved

Net Benefit Applications Approved
Description of Figure 2: Net Benefit Applications Approved
Figure 2: Net benefit applications approved
Asset Value ($billions) Enterprise Value ($billions) Number of applications
2014-15 21.78 - 15
2015-16 18.01 8.86 15
2016-17 - 30.37 22
2017–18 - 35.13 9
2018-19 Not disclosed* 21.48 9

* There was one application calculates in asset value. To preserve commercial confidentiality, the specific amount of the assets has not been indicated.

Notifications

A notification is required to be filed for acquisitions of control of a Canadian business valued below the net benefit review threshold and for investments to establish a new Canadian business. This fiscal year saw a 28% increase in the number of notifications, with a total of 953 certified. The total value of these investments was $41.24 billion for those measured in Asset Value and $63.25 billion for those measured in Enterprise Value (Figure 3). There was a significant increase in the number of investments notified relative to 2017–18, where there were 742 notifications certified. However, the value of the transactions was similar or lower than in the previous year, with the total values of $39.09 billion in Asset Value and $28.56 billion for Enterprise Value.

Overall, consistent with the pattern for past years, the number of notifications associated with the acquisition of control of an existing Canadian business was significantly larger (698, or 73% of overall notifications) compared to the number of notifications associated with the establishment of a new Canadian business (255, or 27%).

The average value of notifications filed by Asset Value in 2018–19 was $95.47 million. The five largest Asset Value notifications accounted for 70%, or $28.73 billion, of the $41.24 billion total. For those notifications measured by Enterprise Value, the average value saw a substantial increase to $121.40 million, representing an 87% increase over the previous year’s average of $64.77 million. The five largest notifications measured by Enterprise Value totaled $33.99 billion or 54% of the $63.25 billion total.

These increases can in part be attributed to the corresponding increased FDI inflows to Canada, and in part the continuing increase in the threshold for net benefit reviews. Indirect transactions are another factor in the high total asset value. In 2018–19 there were five notifications of indirect investments with an Asset Value over $1 billion dollars. These investments were not subject to net benefit review because they were part of a larger global transaction and therefore the investor was not required to submit an application for review but a notification under the Act.

Figure 3: Notifications

Notifications
Description of Figure 3: Notifications
Figure 3: Notifications
Asset Value ($billions) Enterprise Value ($billions) Number of notifications Number of new businesses
2014-15 20.58 - 704 180
2015-16 13.81 18.65 659 137
2016-17 21.09 19.94 715 185
2017–18 39.09 28.56 742 197
2018-19 41.24 63.25 953 255

Investment by Sector

Using the North American Industry Classification System (NAICS), investments into Canada are characterized as generally falling into five broad sectorsEndnotevii. Consistent with a shift to an innovative and knowledge-based economy, 2018-19 saw a continuing increase in investment in the Business and Services Industries sector, from $4.39 billion in 2017-18 to $5 billion in Asset Value and more significantly from $13.01 to $36.83 billion in Enterprise Value.

In contrast, investment in the manufacturing sector declined, following high levels in the previous year, from $24.72 billion to $7.88 billion in Asset Value, and $24.29 billion to $18.11 in Enterprise Value.

Table 1: Investments by sector

 
Number of investments

Value of Investments ($M)

Asset Value

Enterprise Value

Resources

40

$1,601

$10,052

Manufacturing

194

$7,876

$18,106

Wholesale and Retail Trades

126

$1,846

$6,686

Business and Services Industries

353

$5,001

$36,831

Other Services

249

$24,921

$13,058

Figure 4 below demonstrates the relative values of investment in each of these sectors across the last five fiscal years.

Figure 4: Asset Value (AV) and Enterprise (EV) by Sector (notifications and applications)

Asset Value (AV) and Enterprise (EV) by Sector (notifications and applications)

Note: Because there was one application for review calculated in asset value, to preserve commercial confidentiality, the specific amount of those assets has not been included in the Asset Value amount for 2018-19.

Description of Figure 4: Asset Value (AV) and Enterprise (EV) by Sector (notifications and applications)
Figure 4: Asset Value (AV) and Enterprise (EV) by Sector (notifications and applications)
2014-15 2015-16 2016-17 2017–18 2018-19
Resources AV 13.22 6.55 0.69 1.79 1.6
Resources EV - 1.42 7.28 13.97 10.05
Manufacturing AV 7.49 9.97 5.93 24.72 7.88
Manufacturing EV - 13.67 13.49 24.29 18.15
Wholesale and retail AV 2.04 1.13 3.67 7.14 1.85
Wholesale and retail EV - 1.93 9.51 7.71 6.69
Business and services AV 7.58 10.47 3.64 4.39 5
Business and services EV - 5.46 8.7 13.01 36.79
Other services AV 12.03 3.7 7.17 1.03 24.92
Other services EV - 5.03 11.34 4.7 13.06
Total AV 42.36 31.82 21.09 39.09 41.24
Total EV - 27.51 50.31 63.69 84.73

Investment by Country or Region of Origin

In 2018-19, the top three source countries or regions of origin for investment accounted for approximately 86% of all in-bound investment, including 94% of the total value of investments measured by Asset Value, and 92% by Enterprise Value.

Table 2: Top Investors

 
Number of investments

Value of Investments ($M)

Asset Value

Enterprise Value

United States

564

$36,469

$66,396

European Union

230

$2,074

$11,423

China

36

$1,457

$210

India

22

$9

$23

Iran

19

$3

$2

Switzerland

15

$721

$872

Japan

14

$154

$237

Australia

12

$1,598

$1,329

Of these top source countries or regions the United States remained the number one source of investments in Canada under the Act, accounting for 59% of the investments.

The European Union remained the second largest regional source of in-bound investment. In particular, there were 74 investments from the United Kingdom in 2018–19, compared to 33 in 2017–18 and 41 in 2016–17. A breakdown of European Union investment is at Table 3 below.

Table 3: Top Investors from the European Union

 
Number of investments

Value of Investments ($M)

Asset Value

Enterprise Value

European Union

230

$2,074

$11,423

United Kingdom

74

$593

$3,098

France

54

$1,083

$5,947

Germany

39

$59

$1,427

Netherlands

12

$82

$116

Ireland

11

$8

$366

Italy

9

$6

$98

As indicated in Table 2, the value of investments from China continued to fall significantly behind the United States and the EU in terms of Enterprise Value and overall number of investment filings. In the last fiscal year, most investments from China were for the establishment of new businesses (19 out of 36), not acquisitions of existing businesses or assets.

Figure 5: Investment by Country or Region of Origin

Investment by Country or Region of Origin

Note: Investments from Iran, were largely by individuals primarily in the Wholesale and Retail Trade Sector, mostly valued under $1 million.

Description of Figure 5: Investment by Country or Region of Origin
Figure 5: Investment by Country or Region of Origin
Country or region of origin Number
Country or region of origin Number
United States 564
United Kingdom 74
France 54
Germany 39
Netherlands 12
Ireland 11
Italy 9
Rest of E.U. 31
China 36
India 22
Iran 19
Switzerland 15
Japan 14
Australia 12
Other 50

Sectoral Investment by Top Source Countries or Regions

A detailed breakdown by sector for each of the top three source countries or regions of origin is as follows:

Figure 6: Investments by Country or Region of origin and Sector

Figure 6: Investments by Country or Region of origin and Sector
Description of Figure 6: Investments by Country or Region of origin and Sector
Figure 6: Investments by Country or Region of origin and Sector
Resources Manufacturing Wholesale and retail trade Business and services industries Other services
United States 12 119 62 203 168
E.U. 9 51 31 87 52
China 5 7 5 10 9
Japan 2 2 3 5 2
Australia 3 1 0 6 2
India 0 1 6 15 0
Iran 0 2 7 6 4
Total 31 183 114 332 237

Figure 7: Value of Investments by Principal Province of Destination

Figure 7: Value of Investments by Principal Province of Destination
Description of Figure 7: Value of Investments by Principal Province of Destination
Figure 7: Value of Investments by Principal Province of Destination
Province / Territory Value of Investments
Prince Edward Island, Northwest Territories, Nunavut 0-10M$
Yukon 10M$-100M$
Nova Scotia, New Brunswick, Manitoba, Newfoundland and Labrador, Saskatchewan 100M$-1B$
Alberta 1B$-10B$
Quebec, British Columbia, Ontario More than 10B$

Figure 8: Number of Investments by Principal Province of Destination

Figure 8: Number of Investments by Principal Province of Destination
Description of Figure 8: Number of Investments by Principal Province of Destination
Figure 8: Number of Investments by Principal Province of Destination
Province / Territory Number of Investments
Prince Edward Island, Manitoba, Newfoundland and Labrador, Northwest Territories, Nunavut, Yukon 0-10
Nova Scotia, New Brunswick, Saskatchewan 11-50
Alberta 51-100
N/A 101-150
Quebec, British Columbia, Ontario More than 150

National Security Activity

Since 2015-16, this Report has included information on the administration of the national security provisions of the Act. This information on the process and outcomes under these provisions is to further transparency and to improve regulatory certainty for Canadian businesses and investors.

In addition to the information provided in this report, prospective investors and Canadian businesses seeking information on the administration of the national security provisions of the Act are encouraged to review the Guidelines on the National Security Review of Investments, published in December 2016. The Guidelines describe the national security review process, including setting out a non-exhaustive list of factors that the Government may consider when assessing whether an investment poses a national security risk.

With respect to specific investments, it is recommended that international investors, Canadian businesses, and their advisors contact the Investment Review Division to discuss proposed investments and, where applicable, to file a notification at least 45 days prior to planned implementation, whenever such investments may involve the factors outlined in the Guidelines.

Set out below are statistics on the administration of Part IV.1 in the last fiscal year, including outcomes of the review process under the ICA. This report also includes information on characteristics of investments that have required intervention under the ICA and on mitigation conditions. However, details of specific cases are not included in this Report, in accordance with the confidentiality and privileged information requirements of the Act, and national security considerations.

The National Security Review Process

All 962 certified notifications or approved applications for net benefit review submitted in fiscal year 2018-19, as well as other investments which were not subject to filing requirements, were reviewed under the multi-step national security process set out in the Act.

The initial period of review begins as soon as the Minister becomes aware of the investment, which may be pre-filing, and ends 45 days after the application or notification is certified as complete. During the initial period of review and throughout the review process, the security agencies and the other relevant prescribed investigative bodies, including Innovation, Science and Economic Development Canada, assess information and intelligence related to the Canadian asset being acquired or business being established, the terms of the investment and the foreign investor. They may consult with Canada’s allies in order to determine whether the investment could cause injury to national security. The Minister may also require the investor or the Canadian business or entity to provide any information considered necessary for purposes of the review of the investment.

At any time before the end of the 45 day period following the certification of the filing:

  1. The Minister may send the non-Canadian a notice under section 25.2 that an order for review of the investment may be made by the GiC under section 25.3 of the Act. A notice under section 25.2 may be issued if there are reasonable grounds to believe the investment could be injurious to national security. The effect of the notice is to prohibit implementation of the investment if it has not yet been implemented. The notice triggers an additional 45 day period for review, by the end of which either a notice of no further action is issued under paragraph 25.2(4)(a) or an order is issued by the GiC under section 25.3. Or,
  2. The GiC may issue an order under section 25.3. A section 25.3 order may be issued on the recommendation of the Minister, if, after consultation with the Minister of Public Safety, the Minister considers the investment could be injurious to national security. The effect of the order is to prohibit implementation of the investment if it has not yet been implemented. It triggers an up to 90 day (or longer with the investor’s consent) period for review, by the end of which either a notice of no further action is issued under paragraph 25.3(6)(b) or an order containing measures to protect national security may be issued by the GiC under section 25.4.

A section 25.3 order is required to have been made by the GiC before an order can be imposed on the investment under section 25.4. This order can block the investment, order divestiture, or impose conditions on the investment to protect national security. However, a section 25.3 order is not required for the security and intelligence agencies and other prescribed investigative bodies to review the investment. The legal authorities under the Act to investigate are the same throughout each period of the multi-step review process.

Figure 9: Investment Canada Act National Security Review Process

Investment Canada Act National Security Review Process

Notes: The initial period of review may begin during the pre-filing period but the statutory clock begins with a certified filing (or implementation, where a filing is not required). Time periods are prescribed in the National Security Review of Investments Regulations (PDF, 184 KB, 9 pages) and reflect maximums.

Description of Figure 9: Investment Canada Act National Security Review Process
  • Pre-filing period
  • Initial Review Period (45 days)
  • Extended Initial Review (45 days)
  • GiC-Ordered Review Period (45 days)
  • Extended GiC Ordered Review (45 days)
  • Further extension with investor consent
  • GiC decision (20 days)

Statistical Information on National Security Reviews in 2017–18

Of all of the investments reviewed over the past year, there were nine notices issued under section 25.2 of the Act. With respect to two of those nine, further notices were issued advising that no further action would be taken under the ICA. For the remaining seven investments, a section 25.3 order was issued to continue the review. As the result of that further review, in three cases no further action was required under the ICA; in two cases the investor withdrew the investment proposal; and in two cases the GiC issued an order directing the investor to divest itself of the investment.

The average length of review for the seven investments subject to a section 25.3 order was 161 days, from certification to final resolution. Table 4 below sets this data out for the last fiscal year and going back to 2009, when the provisions were first introduced.

Table 4: Notices and Orders issued under Part IV.1
 

25.2 Notice of potential s.25.3 Order for review

Para.25.2(4)(a) Notice of no further action under ICA

Withdrawal following s.25.2 Notice

s.25.3 Order for review

Para.25.3(6)(b) Notice of no further action under ICA

Withdrawal after s.25.3 Order for review issued

s.25.4 Final Order

2018-19

9

2

0

7

3

2

2 Divest

2017-18

4

1

1

2

0

1

1 Block

2016-17

4

2

0

5*

0

0

3 Divest
2 Conditions Imposed

2015-16

0

0

0

0

0

0

0

2014-15

8

2

1

5

0

0

2 Divest
2 Conditions Imposed
1 Block

2013-14

1

0

0

1

0

0

1 Block

2012-13

3

1

0

2

0

1

1 Block

2011-12

0

0

0

0

0

0

0

2010-11

0

0

0

0

0

0

0

2009-10

1

0

1

0

0

0

0

TOTAL

28

8

3

22*

3

4

7 Divest
4 Block
4 Conditions Imposed

* One review is subsequent to a court order.

Note: The fiscal year runs April 1 to March 31. Actions following the issuance of a 25.2 notice may have been taken in a subsequent fiscal year but were further to a 25.2 notice made in the fiscal year of reporting. For example, for fiscal year April 1, 2018 to March 31, 2019, nine 25.2 notices of potential s.25.3 order for review were made. The resulting actions may have been in the 2018-19 or 2019-20 fiscal year. Where a 25.2 notice was not issued prior to a s.25.3 order for Review, all actions related to the case are ascribed to the fiscal year in which the s.25.3 order for review was issued. As a result of this method of reporting, one investment that had been previously reported under 2015-16 is now being reported under 2014-15.

Characteristics of Investments that have been subject to Section 25.3 Orders for Review

Under Part IV.1 of the Act, proposed or implemented investments are assessed based on the facts and context related to the particular transaction under review. In assessing investments under the national security provisions of the Act, and as articulated in the Guidelines on the National Security Review of Investments, the terms of the investment, the nature of the asset or business activities involved, and the parties, including the potential for third-party influence, are considered. Determinations made by the Minister or Governor-in-Council under Part IV.1 of the Act are made on a case-by-case basis. The information provided below on the characteristics of investments that have been subject to orders under section 25.3 of the Act, from fiscal years 2012-13 to 2018–19, should be read in that context.

Table 5: Country of Origin and Sector of Investments Subject to Section 25.3 Orders

Origin*

Industry Sector (NAICS or SIC)**

Outcome following Section 25.3 Order

2018-19

China

4851 (NAICS)—Urban transit systems

Divestiture

China

3333 (NAICS)—Commercial and service industry machinery manufacturing

Withdrawal

Singapore

3325 (NAICS)—Hardware manufacturing

Withdrawal

Switzerland

3336 (NAICS)—Engine, turbine and power transmission equipment manufacturing

Divestiture

China

5223 (NAICS)—Activities related to credit intermediation 

No further action required under the ICA

China

4541 (NAICS)—Electronic shopping and mail-order houses

No further action required under the ICA

Switzerland

3339 (NAICS)—Other general-purpose machinery manufacturing

No further action required under the ICA

2017-18

China

3254 (NAICS)—Pharmaceutical and medicine manufacturing

Withdrawal

China

2379 (NAICS)—Other heavy and civil engineering construction

Block

2016-17

China

3351 (SIC)—Manufacturing Industries—Telecommunication Equipment Industry

Conditions Imposed

China

5179 (NAICS)—Other telecommunications

Divestiture

China

3366 (NAICS)—Ship and boat building

Divestiture

China

3359 (NAICS)—Other electrical equipment and component manufacturing

Conditions Imposed

Cyprus

4821 (NAICS)—Rail transportation

Divestiture

2014-15

China

3351 (SIC)—Manufacturing Industries—Telecommunication Equipment Industry

Divestiture

China

3359 (SIC)—Manufacturing Industries—Other Communication And Electronic Equipment Industries

Conditions Imposed

China

7720 (SIC)—Business Service Industries—Computer And Related Services

Conditions Imposed

Russia

0710 (SIC)—Mining & Quarrying & Oil Well Industries—Crude Petroleum And Natural Gas Industries

Block

United Kingdom

7720 (SIC)—Business Service Industries—Computer And Related Services

Divestiture

2013-14

Egypt

7720 (SIC)—Business Service Industries—Computer And Related Services

Block

2012-13

China

7720 (SIC)—Business Service Industries—Computer And Related Services

Block

Russia

4821 (SIC)—Communication & Other Utility Industries—Telecommunication Carriers Industry

Withdrawal

* The Origin column provides the Country of Origin of the Ultimate Controller of the Investor, as indicated by the Investor in the filings required by the Investment Canada Regulations.

** Investors are required to provide a NAICS code indicating the industry sector of the investment. Prior to 2015-16, the Standard Industrial Classification system was used. In this table, references are to either the 1980 Standard Industrial Classification - Establishments (SIC-E) or the 2012 version of NAICS, as indicated.

Note: The fiscal year runs April 1 to March 31. The s.25.3 order for review and subsequent s.25.4 order or outcome is ascribed to the fiscal year in which the s.25.2 notice was issued. If no such notice was issued, the action is ascribed to the fiscal year in which the s.25.3 order for review was made. As such, one case that had been previously reported under 2015-16 is now being reported under 2014-15.

Administrative Practices

Both internal administrative and external practices around the provisions in Part IV.1 have evolved considerably since they were introduced in 2009. Increased transparency in the administration of Part IV.1 has allowed for more regulatory certainty for Canadian businesses and investors, and for a maturing in practice in the external advisory community as well.

Under the Act, the Government has the authority to review a broad scope of investments, including those for which filings are not required under sections 12 or 17 of the Act, and the authority to intervene in those investments ex-post. Increasingly, Canadian businesses, investors and their advisors are voluntarily engaging with the Investment Review Division in advance of less-than-control investments when the prospective investment may present factors set out in the Guidelines on the National Security Review of Investments. In other cases, where the Minister has become aware of such investments through environmental scanning or public information sources, further information has been required from the parties under section 25.2. This engagement has allowed the Investment Review Division to assess and advise on the likelihood that further review or intervention may be required.

External practice has also shifted notably in respect of filings for notifiable transactions. Following the issuance of the Guidelines in 2016 and annual reporting on the national security review provisions, the proportion of investments for which a filing is submitted in advance of implementation has increased significantly, and the characteristics of advance filings correlate strongly with the factors set out in the Guidelines. As mentioned above, advance filings have allowed the Investment Review Division to assess and advise on the likelihood that further review or intervention may be required and to consider the potential for structural changes to a transaction to mitigate potential national security risks.

If the Investment Review Division becomes aware of a situation where it believes an application for review or a notification has not been filed under sections 17 or 12 respectively, it may contact the non-Canadian to advise them of their obligations under the Act and may, pursuant to s. 25.2, require the appropriate filing or other information considered necessary to determine whether there are reasonable grounds to believe that the investment could be injurious to national security.

In all cases, Investment Review Division officials are available to meet with Canadian businesses and investors about their investment projects. Such consultations provide a useful forum for discussion and the exchange of views which may serve to eliminate possible difficulties and encourage the development of investments of benefit to Canada. The Investment Review Division will also reach out to Canadian businesses, investors or their counsel proactively where appropriate, in the service of ensuring timely, effective, and more transparent reviews.

Ultimately, while guidance and statistics about prior investment reviews can be illustrative for Canadian businesses and prospective investors, every case turns on the specific facts of the particular investment. This serves to reinforce the importance of contacting the Investment Review Division in advance of implementing an investment that may feature factors relevant to national security considerations.

Mitigation Considerations

As noted above, early engagement may also allow for structural changes to an investment to be considered that may mitigate national security concerns in advance. In the context of reviews, in all cases, the sufficiency of Canada's domestic laws designed to protect against threats to critical infrastructure, organized crime, and proliferation of sensitive goods, technology or data, was considered before an order was issued or under the Investment Canada Act. Measures to mitigate the potential harm to national security were also considered and in some cases were imposed through conditions in a section 25.4 order on the investment. The following are examples of such measures:

Conclusion

Canada continues to welcome foreign investment that benefits Canadians and our economy. The Government is committed to administering the Act in a transparent and professional manner while protecting commercially confidential information and national security. The disclosure provided in this Report is to further these objectives. Investments are examined on a case-by-case basis under the Investment Canada Act and Canadian businesses and investors are strongly encouraged to account for the ICA process in their investment planning and to engage with the Investment Review Division as early as possible on specific investment proposals.

Appendix

Interpretive Notes

Data Comparison with Other Statistical Sources

The principal purpose of the Act is the review of investment activity by international investors. For each fiscal year, a report on the administration of the Act is produced and made available to the public.

Data collection is limited to new business proposals and acquisitions of control by foreign investors. Results only represent a portion of the value of international investment in Canada, and therefore cannot be compared with either the foreign direct investment flows or stock figures published by Statistics Canada. For example, the value of major plant expansions by established foreign investors in Canada is not captured under the Act.

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