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Procedural Fairness under the Investment Canada Act’s National Security Regime

Abstract

What procedural protections does fairness demand for foreign investors subject to Canada’s regime for the national security review of investments? This paper argues that much more is required than is presently provided. Under the Investment Canada Act, the Minister of Innovation, Science and Industry and the federal Cabinet both make decisions about whether the investment poses a potential national security threat, with minimal reasons or information provided to the investor. Legally speaking, the significance of these decisions to investors and the statutory scheme (a final, non-appealable determination) warrant greater procedural safeguards. Further, greater justification should only serve to benefit the government in the event of contested proceedings. Finally, as a practical matter, providing more information to investors about the government’s concerns would only serve to improve the mitigation that investors may offer and facilitate the conditional approval of investments, a clear objective of both the existing regime and recent amendments.