The same 40% economic stake can be control on one side of s.28 and definitely not control on the other, depending only on what kind of entity was acquired.
Short answer
Not by a single percentage. Section 28 of the Investment Canada Act sets out fixed rules that run differently depending on what kind of entity is being acquired: for a corporation, majority ownership is deemed control, one-third to majority is only a rebuttable presumption of control, and anything under one-third is deemed not to be control; for a non-corporate entity such as a limited partnership, anything short of an outright majority of voting interests is deemed not to be control, full stop, with no presumption zone in between.
Section 28(3) sets three tiers for a corporation. Paragraph (a): “the acquisition of a majority of the voting interests of an entity or of a majority of the undivided ownership interests in the voting shares of an entity that is a corporation is deemed to be acquisition of control.” Paragraph (c): “the acquisition of less than a majority but one-third or more of the voting shares of a corporation … is presumed to be acquisition of control … unless it can be established that … the corporation is not controlled in fact by the acquirer.” Paragraph (d): “the acquisition of less than one-third of the voting shares of a corporation … is deemed not to be acquisition of control.”
Section 28(3)(b) is the provision that flips the analysis for a limited partnership, a trust, or a joint venture: “the acquisition of less than a majority of the voting interests of an entity other than a corporation is deemed not to be acquisition of control of that entity.” There is no one-third rebuttable-presumption zone for a non-corporate entity — the line is a straight majority, and nothing less counts, regardless of how much practical influence the interest actually carries.
Section 28(1) lists four routes by which “a non-Canadian acquires control of a Canadian business”, including acquiring voting interests in an entity that itself controls, directly or indirectly, another entity carrying on the Canadian business — the same control test then has to be applied at each link in that chain, which is the mechanic behind an indirect acquisition through a foreign parent.
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