Regulations Amending the Crown Corporation General Regulations, 1995: SOR/2022-257
Canada Gazette, Part II, Volume 156, Number 26
Registration
SOR/2022-257 December 2, 2022
FINANCIAL ADMINISTRATION ACT
P.C. 2022-1265 December 2, 2022
Her Excellency the Governor General in Council, on the recommendation of the Minister of Finance, makes the annexed Regulations Amending the Crown Corporation General Regulations, 1995 under subsection 92(2) of the Financial Administration Act footnote a.
Regulations Amending the Crown Corporation General Regulations, 1995
Amendments
1 The long title of the Crown Corporation General Regulations, 1995 footnote 1 is replaced by the following:
Crown Corporation General Regulations, 1995
2 Section 1 of the Regulations and the heading before it are repealed.
3 The Regulations are amended by adding the following after section 2:
Exemption for Restricted Transactions
2.1 The Canada Growth Fund Inc. and its wholly-owned subsidiaries are exempt from the application of section 91 of the Act.
Coming into Force
4 These Regulations come into force on the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Issues
The Canada Growth Fund (CGF) will be established in 2022 as a subsidiary of the Canada Development Investment Corporation (CDEV). CGF requires the capacity to make timely, independent investment decisions — including the ability to incorporate wholly owned subsidiaries, acquire shares in corporations, or dispose of shares, among other activities. In order to so at the speed required by the private sector, an exemption from section 91 of the Financial Administration Act (FAA) is needed.
Background
In the 2022 Fall Economic Statement (FES), the Government announced its intention to stand up CGF as an arm’s-length public investment fund that would attract substantial private-sector investment to help meet important national economic policy goals:
- Reducing emissions and achieving Canada’s climate targets;
- Accelerating the deployment of key technologies, such as low-carbon hydrogen and carbon capture, utilization and storage (CCUS);
- Scaling up companies that will create jobs, drive productivity and clean growth, and encourage the retention of intellectual property in Canada; and
- Capitalizing on Canada’s abundance of natural resources and strengthening critical supply chains to secure Canada’s future economic well-being.
The 2022 FES further stated the Government’s intention to launch CGF in a two-step process, standing it up initially as a subsidiary of the CDEV in 2022, with the Government taking the steps to introduce a permanent, independent structure in the first half of 2023. This two-phased approach is necessary so that CGF can immediately begin to make investments needed to meet Canada’s climate and economic objectives.
Objective
The objective of these Regulations is to enable CGF to undertake activities necessary to its business (such as incorporating subsidiary corporations, acquiring or disposing of shares in corporations) at the speed required by private-sector investors and companies, without requiring approval of the Governor in Council (GIC) for each transaction. Such approval requirements would slow down CGF’s ability to enter into transactions, and would ultimately negatively affect its ability to fulfill its mandate.
Description
These Regulations amend the Crown Corporation General Regulations, 1995, to exempt CGF and its wholly owned subsidiaries from section 91 of the FAA, which requires Crown corporations to seek GIC approval of certain transactions.
Consultation
Consultations between the Department of Finance Canada, the Department of Justice, and CDEV legal counsel were undertaken to develop this proposal. It was determined through these consultations that exempting CGF from section 91 of the FAA would positively impact its ability to make investments and conduct operations in fulfillment of its mandate. Given that no other stakeholders are affected, to support the timely and efficient implementation of the direction received from 2022 FES, the Regulations were exempted from prepublication in the Canada Gazette, Part I.
Modern treaty obligations and Indigenous engagement and consultation
There are no modern treaty obligations associated with these Regulations; therefore, no Indigenous engagement or consultation was undertaken. The Regulations are not expected to have any differential impacts on Indigenous people or implications for modern treaties, as per Government of Canada obligations in relation to rights protected by section 35 of the Constitution Act, 1982, modern treaties, and international human rights obligations.
Instrument choice
The Department of Finance Canada, in consultation with the Department of Justice and CDEV, assessed options to achieve the policy objective of enabling CGF to fulfill its mandate while it was a subsidiary of CDEV. It was determined that the proposal was the most effective method of allowing CGF to undertake activities related to its business, as the alternative would require CGF to seek GIC approval of every individual transaction. It was also determined that these Regulations are necessary as soon as CGF is stood up, so that it can make investments exempt from this requirement in the first quarter of 2023.
The Government will take steps to establish a permanent, independent structure in 2023 for CGF that will provide it with the operational independence necessary to carry out its mandate. It is expected that legislation will be introduced to address this issue in the permanent structure for CGF.
Regulatory analysis
Benefits and costs
CGF’s mandate is to make investments that catalyze substantial private sector investment in Canadian businesses and projects to help transform Canada’s economy at speed and scale on the path to net zero. CGF requires the capacity to make timely, independent investment decisions — which is crucial to its market credibility and the willingness of other investors to work with CGF.
The benefit of this proposal is that it would enable CGF to carry out activities without seeking GIC approval of individual transactions. This will allow CGF to conduct its business with the speed and agility required by the private sector, which is a key criterion of its implementation.
In the absence of this proposal, it could take several months for CGF to obtain GIC approval for the constitution of new CGF subsidiaries, a key step in the course of CGF’s regular investment activities. In a highly competitive market for investments in decarbonization projects and technologies, CGF will need to act swiftly and partner with fast-paced private-sector entities. In the absence of the proposal, the delays to obtain GIC approvals for the constitution of new affiliates is likely to lead to many lost opportunities, as project proponents will look to invest in other international jurisdictions that offer analogous financial support and that can confirm funding faster than the CGF. Similarly, private investors may decide to invest in other countries than Canada or other projects if CGF funds cannot be confirmed on a timely basis, preventing the fast delivery of its investment projects. Furthermore, the process and transparency requirements of getting GIC approval may discourage investors who have concerns about sharing sensitive business information with the Government.
There are no expected costs for the proposal.
Small business lens
These Regulations are not anticipated to have an impact on small businesses, as they pertain to provisions governing an individual Crown corporation. However, small- and medium-sized enterprises (SMEs), which are in focus for the CGF’s investment activities, may benefit from this proposal. The Regulations would enable CGF to make those investments more quickly. Therefore, if there is any impact on small businesses, it is anticipated to be positive.
One-for-one rule
The one-for-one rule does not apply to these Regulations, as they would not impose any administrative burden on businesses.
Regulatory cooperation and alignment
These Regulations are not related to a work plan or commitment under a formal regulatory cooperation forum (e.g. the Canada–United States Regulatory Cooperation Council, the Canadian Free Trade Agreement Regulatory Reconciliation and Cooperation Table, the Canada-European Union Comprehensive Economic and Trade Agreement Regulatory Cooperation Forum).
Strategic environmental assessment
In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that the Regulations would not result in positive or negative environmental impacts. Therefore, a strategic environmental assessment is not required.
Gender-based analysis plus
No gender-based analysis plus (GBA+) impacts have been identified for this proposal.
Implementation, compliance and enforcement, and service standards
Implementation
These Regulations would exempt CGF and its wholly owned subsidiaries from section 91 of the FAA on the date they are registered. The exemption from the regulation will allow CGF to incorporate subsidiaries, if required, without Governor in Council approval. These wholly owned subsidiaries would enter into private sector-led transactions starting in early 2023. As CGF is intended to be a subsidiary of CDEV only on an interim basis, the Government will take steps to replicate the effects of these Regulations in enabling legislation when the permanent structure of CGF is established.
Contact
Marie-Josée Lambert
Director General
Crown Investment and Asset Management Branch
Department of Finance Canada
Ottawa, Ontario
K1A 0G5
Telephone: 613‑240‑7266