Director’s Liability for Remittances – Effective Resignation and Failure to Act

Gariepy v The Queen, 2014 TCC 254

This was an appeal from director’s liability assessments issued pursuant to subsection 227.1(1) of the ITA, and the application of the due-diligence defense in subsection 227.1(3) of the ITA.

This decision is troubling. It appears to be based, at least in part, on sympathy for the directors and condemnation of ligation as a collection strategy by the CRA.  The conclusion that inaction by a person who reasonably believes to have resigned as director is sufficient to meet the due diligence defense standard is, however, valid.

FACTS

The Appellants claimed that they had resigned as directors two years prior to the assessments, or in the alternative that they had exercised due diligence.  The due diligence was based on them doing nothing because they reasonably believed that they had resigned as directors OR that it was reasonable for them to rely on a third-party lawyer who they believed had taken de facto control over the company.

ANALYSIS

The court referred to the summary of the applicable law in Deakin v. The Queen, 2012 TCC 270 at paragraphs 13 -16 and 24:

• subsection 227.1 of the ITA and section 323 of the ETA make directors of corporations personally liable for the corporation’s failure to meet its remittance obligations;
• This personal liability reflects the degree of management and control that directors have over the management and affairs of corporations;
• Subsection 227.1(3) of the ITA and subsection 323(3) of the ETA provide protection against personal liability of a director, for failures of the corporation to make remittances, if the director exercised a degree of care, diligence and skills that a reasonable and prudent person would have exercised in similar circumstances to prevent the failure to remit;

The TCC referred to the FCA decision in Canada v. Buckingham, 2011 FCA 142, where the due diligence defense was considered.  The defense looks to proactive steps taken to prevent failures. Actions taken to remedy failures are generally not relevant and are generally not sufficient to establish the due diligence defense (para 3).

Federal Court of Appeal in Balthazard v. Canada, 2011 FCA 331, set out the applicable test, and referred to the FCA decision in Buckingham, at paragraph 32:

[32]      In Buckingham, this Court recently summarized the legal framework applicable to the care, diligence and skill defence under subsection 323(3), as follows:

a.         The standard of care, skill and diligence required under subsection 323(3) of the Excise Tax Act is an objective standard as set out by the Supreme Court of Canada in Peoples Department Stores Inc.(Trustee of) v. Wise, 2004 SCC 68. This objective standard has set aside the common law principle that a director’s management of a corporation is to be judged according to his or her own personal skills, knowledge, abilities and capacities. However, an objective standard does not mean that a director’s particular circumstances are to be ignored. These circumstances must be taken into account, but must be considered against an objective “reasonably prudent person” standard.

b.         The assessment of the director’s conduct, for the purposes of this objective standard, begins when it becomes apparent to the director, acting reasonably and with due care, diligence and skill, that the corporation is entering a period of financial difficulties.

c.         In circumstances where a corporation is facing financial difficulties, it may be tempting to divert these Crown remittances in order to pay other creditors and thus ensure the continuity of the operations of the corporation. That is precisely the situation which section 323 of the Excise Tax Act seeks to avoid. The defence under subsection 323(3) of the Excise Tax Act must not be used to encourage such failures by allowing a care, diligence and skill defence for directors who finance the activities of their corporation with Crown monies, whether or not they expect to make good on these failures to remit at a later date.

d.         Since the liability of directors in these respects is not absolute, it is possible for a corporation to fail to make remissions to the Crown without the joint and several, or solidary, liability of its directors being engaged.

e.         What is required is that the directors establish that they were specifically concerned with the tax remittances and that they exercised their duty of care, diligence and skill with a view to preventing a failure by the corporation to remit the amounts at issue.

The Court did not have to turn to the due diligence defense as it held that the resignations of the Appellants was valid and effective. (para 10). This was despite the court finding that there were significant credibility issues, and doubting the truth of the statement of the witnesses for the Appellant (para 13).   The resignation was held to be valid from the date that the resignation was prepared by the law firm, despite not having been signed by the Appellants (para 17).

The conclusion was based on the law firm’s documents (see para 22).  The TCC relied on the decision in Perricelli v. Her Majesty the Queen, 2002 GSTC 71, Walsh v. Her Majesty the Queen, [2010] 1 CTC 2412, and Corkum v. Her Majesty the Queen, 2005 TCC 755 , each of which deals with the necessary form, content or communication of a valid director’s resignation for these purposes. This was also based on the Ontario Business Corporations Act which only requires that resignations be written, not that they be signed (para 25).  A written resignation meaningfully communicated to the corporation is acceptable: Irvine v Minister of National Revenue, 91 DTC 91; and  Cybulski v. Minister of National Revenue, 88 DTC 1531.

From paragraph 15 of the reasons, it appears that the TCC was looking down upon the CRA’s actions in assessing the wives (Appellants) as de jure directors while disregarding their husband’s as de facto directors.  The TCC suggests that this appears to be a strategic collection decision using litigation, and said at para 15:

Surprisingly, without any evidence of any further consideration being given to the issue, CRA assessed the wives as de jure directors and did not assess the husbands as de facto directors. No explanation was given for this by the Crown, but it was observed that Mr. Gariepy had an intervening bankruptcy which might have made collection difficult. I would certainly hope this was not the case. The Crown’s pursuit of litigation in this Court should not be used as a strategic collection mechanism. The prospect of collections against one taxpayer should not justify the pursuit of another taxpayer even if they are husband and wife.

The Court did consider the due diligence defense, and whether the complete failure to act was sufficient in the circumstances. (para 27).  The Court held that in the circumstances it was reasonable to assume that the appellant had resigned as director unless someone suggested otherwise (para 30).  The reasonable and continuing belief of valid resignation as director is one of the few circumstances where a complete failure to act fulfills the due diligence defense requirements (para 32).   However, in the case of the second Appellant, the TCC held that, if the resignations were not valid, the evidence showed that the second appellant had not done everything a reasonable person would consider reasonable to resign, and therefore her inaction did not fulfill the due diligence requirement (para 37).  The alternative argument of being ousted as directors by de facto control passing to a rogue lawyer was also rejected.

– Sas Ansari, JD LLM PhD (exp)

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