Draft guidelines on documentation to be provided by investors seeking a Ministerial opinion on the Canadian status of an individual or an entity

Canadian Status Opinions - Documentation to be provided by investors - Existing and New Canadian Businesses

This is a list of documents and/or information that should be submitted by investors with their request for an opinion on whether the Canadian business in which they are investing will be deemed to be a Canadian-controlled business under the Investment Canada Act. The investor should ensure that the documentation submitted to the government presents a comprehensive profile of the structure and operations of the business. Where the Canadian business is a wholly owned subsidiary, the Department expects that the investor will also provide complete information on the parent company. Please note that all information provided is protected under Section 36 of the Investment Canada Act.

Depending on the completeness of the information provided, it may be necessary for the investor to submit additional documents to Cultural Sector Investment Review (CSIR) during the course of the analysis. The type of supplementary information requested will vary on a case by case basis, depending on what CSIR considers appropriate in order to enable the Minister to make a determination. CSIR also welcomes the opportunity to meet with executives of the Canadian business for which a Canadian status opinion has been requested. Such meetings have proved to be very helpful in the past.

In the case of a new Canadian business to be set up by both Canadian and non-Canadian investors, the investor should be in a position to provide, at the very least, a draft version of any documents requested with sufficient detail for the Minister to be able to render an opinion. Where possible, the investor should provide an official signed version of the record required. When the Minister renders an opinion on the basis of draft documents, the Minister will reserve the right to require that the final signed documents be provided to the Department.

Please note that not all of the information listed below may be relevant to the Canadian business, depending on its nature and structure. However, where relevant, the following information will be required:

Corporate Structure of the Canadian Business

  • Documents of Incorporation
    • Articles of Incorporation, Letters Patent and all amendments thereto
    • By-laws and all amendments thereto
  • Financing agreements (loan, share purchase, debenture, escrow, etc.)
  • Details of financial structure of the business and any related holding company
  • Dispute resolution mechanisms
  • Contractual arrangements between a shareholder and the business
  • Intellectual property licensing agreement(s)
  • Information on blood/familial related parties involved (Directors, officers, main shareholders)
  • Information regarding the foreign investor involved in the investment, level of involvement, any related or affiliated entities of such investor in Canada, and any agreements and/or interests that such investor might have relating to the investment in question
  • Information regarding the Canadian shareholder of the investment, level of involvement in both the business' governance structure and its management, other business interests, and other matters relating to the Canadian shareholder's capacity to exercise control over the investment

Shareholding

  • Shareholders' agreement(s), whether unanimous or not, for the business and any related holding company (voting trust of shares, dividend)
  • Number of issued and outstanding shares for each category of shares, and a list of shareholders detailing citizenship, number and percentage of shares held in each category
  • Share option plan
  • Breakdown of 100% of voting power by class of shares and by shareholders

Governance Structure

  • Information on the Board of Directors and any of its committees (composition, decision-making structure, quorum, electoral process)
  • The name and citizenship of each member of the Board of Directors of the business and of any related holding company.
  • Financial statements for at least the last three years (if financial links between related companies, financial statements for all companies) (Audited statements, if available)
  • For new business establishments, please provide a 3-year financial forecast
  • Annual reports (for at least the last three years)

Management Structure

  • Management agreements (with shareholders, directors, officers and affiliated and related companies)
  • Employment and consulting agreements (with shareholders, directors, officers and affiliated and related companies)
  • The name and citizenship of officers of the business and any related holding company, their responsibilities, and any powers delegated to them by the Board
  • Information on operational, managerial and financial relationships and on the day-to-day management of the business: financing decisions, operations, plans, forecasts, budgets

Additional Documents Required for a Sole Proprietorship

  • Spousal information if the marital regime provides for ownership rights

Additional Documents Required for a Partnership (limited or general), Joint Venture or Trust

  • All agreements with any amendments
  • The names of the general partner, other partners, beneficiaries, trustees or members, as well as their citizenship and place of business
  • Contractual arrangements between partners, beneficiaries, trustees or members
  • Information on the organization of the business, the decision-making process, and the responsibilities of each partner, beneficiary, trustee or member.