Foreign direct investment (FDI) plays a vital role in Canada’s economy, yet Ottawa manages a careful balance between openness and protective review. Investors need to grasp a dual reality: Canada generally embraces incoming capital, employment opportunities and technological advances, while applying focused oversight when matters of national interest, security or strategic sovereignty emerge. This article outlines the governing legal structure, highlights the strategic sectors drawing official attention, offers practical guidance for navigating the process, notes expected timelines and provides examples to assist foreign buyers in planning transactions involving Canadian assets.
The legal and institutional framework
- Investment Canada Act (ICA): The ICA sets out the federal framework for reviewing foreign takeovers of Canadian businesses. It features a conventional net benefit assessment for qualifying deals and a distinct national security review authority that operates without monetary thresholds. Oversight is carried out by the federal department charged with economic development and industry matters.
- Net benefit test vs. national security review: The net benefit test applies when transactions exceed specific financial thresholds and considers how the deal may advance Canada’s economic interests, such as employment, R&D, or capital commitments. The national security review, by contrast, may be invoked for any investment if officials suspect the transaction could pose risks to national security.
- Provincial and sectoral regulators: Provincial frameworks and industry-focused regulators also play key roles. Illustrations include provincial rules on land and farmland ownership, telecommunications licensing and spectrum management, Fisheries and Oceans for marine-related assets, and aviation authorities overseeing airports or air transport facilities.
- State-owned enterprises and sensitive parties: Transactions involving state-owned enterprises or foreign investors closely linked to foreign governments generally undergo heightened review and may be subject to more rigorous national security scrutiny.
Which industries face the closest examination
- Critical minerals and energy: Canada is rich in minerals and hydrocarbons. Acquisitions involving rare earths, lithium, nickel, uranium or major oil and gas infrastructure trigger close attention because of supply-chain implications and strategic value.
- Telecommunications, data and digital infrastructure: Ownership of networks, data centers, and companies holding large volumes of personal or sensitive data is sensitive because of espionage and privacy risks.
- Defense and dual-use technologies: Aerospace, cybersecurity firms, advanced manufacturing and suppliers to the armed forces are high priority for national security screening.
- Transport and critical infrastructure: Ports, rail corridors, bridges and airports have clear national-security or public-safety implications.
- Real estate in sensitive locations: Residential and commercial property near military bases, major infrastructure, or critical government facilities is watched; provinces have imposed taxes or restrictions on foreign residential buyers.
- Food, agriculture and water resources: Control of farmland, processing facilities or food supply chains can be sensitive for food security and provincial policy reasons.
Key practical steps for foreign buyers
- Screen early: As soon as a target is identified, assess whether the transaction triggers the ICA net benefit threshold or could be subject to a national security review. Early screening avoids surprises and closing delays.
- Engage Canadian counsel and advisors: Local legal, regulatory and industry specialists should advise on filing obligations, sector-specific permits, stakeholder expectations and likely conditions.
- Pre-notification consultations: Use confidential pre-notification meetings with the reviewing authority to clarify issues and surface potential national-security flags. This can shorten formal review timelines and help design mitigations.
- Consider deal structure: Minority investments, joint ventures, or phased acquisitions can avoid thresholds that trigger net-benefit reviews. However, national security review powers are threshold-free and can still apply.
- Prepare mitigation proposals: Be ready to offer voluntary undertakings — e.g., Canadian board representation, commitments to maintain R&D or employment levels, data localization or restricted access to certain facilities.
- Coordinate with provincial authorities: Real estate purchases, farmland acquisitions and resource licenses often require provincial clearances or registrations.
- Plan for timing and conditionality: Incorporate regulatory timelines and the possibility of conditions, remedies or divestiture orders into closing plans and financing arrangements.
Timelines, costs and likely outcomes
- Timelines: Reviews can range from weeks to many months. Typical initial staff reviews may be measured in 30–90 days; more complex net-benefit reviews or national security inquiries can extend beyond that. Complex mitigation negotiations add time. Always assume regulatory review will be longer than an ordinary commercial closing timeline.
- Costs: Legal, advisory and compliance costs can be substantial. If mitigation is required, implementing and monitoring undertakings (e.g., ring-fencing data or creating Canadian subsidiaries) adds ongoing expense.
- Outcomes: Possible outcomes include unconditional approval, approval with conditions or undertakings, divestiture orders, or outright prohibition. The national security power has occasionally been used to block transactions outright.
Representative examples and key insights
- CNOOC’s acquisition of Nexen (2013): A high-value foreign acquisition by a Chinese state-owned enterprise that was approved after a public review. The deal proceeded with commitments aimed at protecting Canadian operations and investments. The case illustrates that state-linked buyers can succeed when they offer clear economic benefits and credible undertakings.
- Blocked transaction: a proposed takeover of a major construction firm (2018): The federal government blocked a takeover of a Canadian infrastructure company by a large foreign state-owned enterprise on national security grounds. The decision shows that infrastructure and construction companies connected to critical projects can trigger enforcement even when the bidder is willing to negotiate mitigations.
- Real-estate and provincial measures: British Columbia and Ontario introduced significant non-resident property taxes and registration requirements in response to housing affordability concerns. These provincial tools demonstrate that even if federal investment rules permit a purchase, local taxes and restrictions may materially affect deal economics.
