Andrew Coyne scrambles to find the right words to describe the indescribable:
The existing rules, as readers will know, require that a foreign takeover be of “net benefit” to Canada. How this is to be demonstrated, how it is even defined, is a secret to which the bidder is not privy — understandably enough, since it is not known to the government either. The result may be compared to a game of blind man’s bluff, only with both players wearing blindfolds. The bidder makes repeated attempts to hit the mark, while the government shouts encouragingly, “warmer… ” or “cooler…” depending on its best guess of where the target happens to be at the time.
I’m joking, of course. In fact, there’s a perfectly clear definition of “net benefit.” As set out in section 20 of the Investment Canada Act, the minister is required to take into account the effect of the investment on “the level and nature of economic activity in Canada,” specifically (but “without limiting the generality of the foregoing”) “on employment, on resource processing, on the utilization of parts, components and services produced in Canada and on exports from Canada.” Clear enough, right?
[. . .]
All told, I count more than 20 different criteria to be applied, vague, elusive and contradictory as they are. Whether it is possible to measure even one of them in any objective fashion, still less all of them at the same time, may be doubted — but even if you could, the Act provides no benchmark of what is acceptable, separately or collectively. Neither does it say what weight should be given to each in the minister’s calculations, or even whether he strictly has to pay any of them any mind at all (“the factors to be taken into account, where relevant, are…”).
In other words, the whole thing is a charade, applying a veneer of objectivity to what remains an entirely subjective — not to say opaque, arbitrary and meaningless — process. Which is good, since any attempt to define such benchmarks, weights, etc would be even more arbitrary and meaningless. Because there isn’t any objective definition of “net benefit,” at least in the sense implied, nor is it necessary to invent one. We don’t need to clarify the net benefit test. We need to abolish it.
