Foreign Investors Cannot Use Statutory Privilege To Avoid Disclosure Of Investment Canada Act Undertakings

On January 26, 2016, the Court of Appeal for Ontario ruled that confidential written undertakings given by a foreign investor to the government of Canada to settle enforcement action under the Investment Canada Act (ICA) were not barred by the ICA from disclosure in unrelated legal proceedings. In particular, the Court held that the foreign investor who gave the undertakings cannot rely on the statutory privilege under the ICA to refuse disclosure of the undertakings. This is the case even when the Minister of Industry¹ successfully invokes that privilege to resist disclosing undertakings on the basis that disclosure is not necessary for any purpose related to the administration or enforcement of the ICA and would be prejudicial to the foreign investor. Instead, disclosure of potentially sensitive undertakings given to secure foreign investment approval under the ICA can still be sought directly from the investor on other grounds that may be available to a requester.