WHICH INVESTORS ARE FOREIGN?

Abstract

Given the proliferation of legislative restraints on foreign enterprise, this article reviews the conceptual basis for deciding who is “foreign” for the purpose of Canadian legislation. It identifies sixty-one legislative provisions that discriminate against enterprises with owners or directors perceived to be foreign, and determines the conceptual bases for this discrimination to be nationality, residence and domicile. The author surveys the misleading nature of these labels, which he believes is indicative of a) conceptual confusion stemming from a lack of legislative analysis, b) political ambivalence and c) constitutional problems regarding provincial ability to discriminate on the basis of national status. After surveying the bases for foreignness to determine the best test, he concludes in favour of nationality and physical presence.