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ARTICLE · 10 MAY 2012

Amendment To Investment Canada Act Will Allow Greater Ministerial Disclosure

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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.

CanadaAntitrust/Competition Law
Douglas New
Douglas New
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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

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