In the second quarter of 2010, the Investment Review Division of Industry Canada (IRD) received approximately 142 notifications in respect of the acquisition or establishment of Canadian businesses pursuant to the Investment Canada Act (ICA). In addition, three Ministerial decisions based on applications for review were made in the second quarter of 2010. By way of contrast, in the full 2007 year, likely a high water mark for foreign investment in Canada, approximately 676 notifications and 62 Ministerial decisions based on applications for review were made. Meanwhile, only seven Ministerial decisions based on applications for review have been made in the first half of 2010.
The key distinction between an application for review and a notification is that an application for review requires that a foreign investor establish for the Minister of Industry (or the Minister of Heritage in the case of cultural businesses) that a proposed investment is of "net benefit to Canada". This is usually achieved by providing binding undertakings to the Minister in respect of the future conduct and management of the Canadian business. A notification does not trigger any approval requirements and is largely an administrative formality. Applications for review are usually triggered by large, direct acquisitions of Canadian businesses.
Meanwhile, amendments to the Investment Canada Act, not yet implemented, will alter the thresholds at which an application for review is triggered. It is not yet known what specific impact the change in thresholds will have on the number of applications for review filed. It is anticipated, however, the amendments will decrease the number of such applications, leaving only the largest investments in Canadian businesses as subject to approval under the economic review provisions of the Investment Canada Act.
In terms of acquisitions of Canadian cultural businesses, a significantly restricted area for foreign investment, the website of the Department of Canadian Heritage - Cultural Sector Investment Review (CSIR) suggests that two Ministerial decisions (in relation to the establishment of a Canadian order fulfillment centre by Amazon.com, Inc. and the Icahn Group’s proposed acquisition of Lions Gate Entertainment Corp.) and only three notifications were made in respect of the acquisition or establishment of cultural businesses in the second quarter of 2010.