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International Trade - Investment Canada Act (ICA). China Mobile Communications Group Co., Ltd. v. Canada (Attorney General)
In China Mobile Communications Group Co., Ltd. v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal reviews some little-litigated Investment Canada Act procedures:II. Statutory framework for review of investments by non-Canadians
[4] The Investment Canada Act, R.S.C. 1985, c. 28 (1st Supp.) (the ICA) provides for the review of investments in Canada by non-Canadians. One of its objectives is to ensure that foreign investments are not injurious to national security. Reviews of foreign investments on this ground require decisions by the Minister of Industry (the responsible Minister), the Minister of Public Safety and Emergency Preparedness and, ultimately, the Governor in Council. The relevant statutory provisions are set out in the annex to these reasons.
[5] The review process begins with the Minister of Industry. Where the Minister of Industry, having consulted the Minister of Public Safety and Emergency Preparedness, is satisfied that the investment would be injurious to national security (subparagraph 25.3(6)(a)(i) of the ICA), or, where the Minister of Industry is not able to determine whether the investment would be injurious to national security on the basis of the information available (subparagraph 25.3(6)(a)(ii) of the ICA), the issue can be referred to the Governor in Council.
[6] If the Minister has reasonable grounds to believe that an investment by a non-Canadian could be injurious to national security, the Minister may, within the prescribed period, send a notice to the non-Canadian advising that an order for the review of the investment may be made by the Governor in Council (subsection 25.2(1) of the ICA).
[7] If the Governor in Council does make an order for the review of the investment, the Minister must send a further notice to the non-Canadian informing them of the order and advising them of their right to make representations to the Minister (subsection 25.3(2) of the ICA). The Minister must afford the non-Canadian a reasonable opportunity to make representations in the course of the review (subsection 25.3(4) of the ICA).
[8] The Governor in Council has broad powers when assessing an investment referred from the Minister in either of the circumstances contemplated by paragraph 25.3(6)(a). The Governor in Council may, by order within the prescribed period, “take any measures in respect of the investment that he or she considers advisable to protect national security” (subsection 25.4(1) of the ICA), including requiring the non-Canadian to divest themselves of control of the Canadian business or of their investment in the entity (paragraph 25.4(1)(c) of the ICA).
[9] Under subsection 25.4(1) of the ICA, the Governor in Council may only exercise its powers in respect of the investment where the Minister has referred the matter to the Governor in Council after consultation with the Minister of Public Safety and Emergency Preparedness. Put otherwise, a Ministerial recommendation is a threshold or pre-condition to a decision of the Governor in Council in respect of the investment.
[10] Section 25.6 of the ICA provides that decisions and orders of the Governor in Council, and decisions of the Minister, are final and binding and, except for judicial review under the Federal Courts Act, R.S.C. 1985, c. F-7 are not subject to appeal or to review by any court. At paras 11-14 the court spells out the administrative and cabinet procedures undertaken in this case.
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