Lunch and Learn - Director's Duties and Liabilities

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Director's Duties and Liabilities presented by Norton Rose Fulbright.

Transcript of Lunch and Learn - Director's Duties and Liabilities

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The legal domain of director’s roles, responsibilities and corresponding liabilities can be quite complex and will vary in

particular circumstances.

This presentation does not contain a full analysis of the law nor does it constitute an opinion of any Norton Rose Fulbright nor does it constitute an opinion of any Norton Rose Fulbright

entity on the points of law discussed.

You must seek specific legal advice on any particular matter which concerns you.

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Introduction To Director Duties & Liabilities

Directors function collectively, as the board of directors (the “Board”) of acorporation, and have no authority to independently bind the corporationunless specific duties are delegated to them.

Accordingly, directors are not personally liable for the acts of the corporationunless their personal liability is expressly provided for in legislation.

However, if a director holds him or herself out as having authority which heor she has not been delegated, personal liability may result.

“Place Holder” or “Dummy” Directors

It is generally held that all directors of a corporation, however active orinactive in the management of the corporation, will be held to the samestandards and will have the same responsibilities and liabilities, subject tolimited exceptions such as in respect to criminal liability for acts of theCorporation.

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Overview

The Fundamental Duties of Corporate Directors

• Duties Under Corporate Statutes

• Duty to Manage

• Fiduciary Duties

• Duty of Care

• Duty of Loyalty

Corresponding Responsibilities and Liabilities of Corporate

Directors

• Liability Under Corporate Statutes

• Liabilities Under Employment Law

• Liability for Source Deductions and Tax Remittances

• Liability Under Other Statutes and • Duty to Comply with the Law

• Liability Under Other Statutes and Regulations

• Tort Liability

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Fundamental Duties As Prescribed in Corporate

StatutesThe principal statutes which set out directors’ duties are:

– Canada Business Corporation’s Act (the “CBCA”) - federal– Canada Business Corporation’s Act (the “CBCA”) - federal

– Business Corporation’s Acts (Ontario) (the “OBCA”) – provincial

Such statutes make clear that directors owe the following main duties to the corporation:

– A duty to manage;

– Fiduciary duties; and

– A duty of care.

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The Duty to Manage

Directors have a duty to manage or supervise the management of the business and affairs of the corporation (CBCA s.102(1), OBCA s.115(1)).

• Specific roles undertaken by the directors will vary for each corporation.

• If tasks/decisions undertaken pursuant to the duty to manage the business and affairs of the corporation are delegated, the directors are not relieved of their duty to manage the business and affairs of the corporation.

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• Directors are required to review the work done, decisions made, or any reports or recommendations provided to them from officers or committees to ensure compliance with their duty to manage.

• Note: Directors’ power to manage the business and affairs of a corporation may only be restricted in a unanimous shareholders agreement.

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Fiduciary Duties

Under both the CBCA and OBCA, a director’s fiduciary duty is made up ofthree components:

•the duty to act honestly;

•the duty to act in good faith; and

•the duty to act in the best interests of the Corporation.

Who is the fiduciary duty owed to?

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Who is the fiduciary duty owed to?

Directors owe a fiduciary duty solely to the corporation and not to the shareholders,creditors, or any other stakeholders of the corporation.

Note: In fulfilling their fiduciary duties, directors may, however, take into accountthe interests of various corporate stakeholders, including shareholders, employees,suppliers, creditors, consumers, governments and the environment, and the impactthat consequences to these stakeholders may ultimately have on the corporation.

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Fiduciary Duties - Continued

The Duty to Act Honestly and In Good Faith

• There is little case law elaborating on or articulating these requirements beyond suggestion that it is the “absence of bad faith”.

• Self-dealing and preferring ones interests or preferring the interests of one or more shareholders over, and/or to the detriment of, shareholders as a whole have been found to amount to a failure to act in “good faith”.

The Duty to Act in the Best Interests of the Corporation

• Each director has an obligation, when exercising his or her powers and

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• Each director has an obligation, when exercising his or her powers and discharging his or her duties, to act with a view to the best interests of the corporation

• Traditionally, the “best interests of the corporation” has been interpreted to mean the best interests of the shareholders, taken collectively.

• Case law states that the “best interests of the corporation” is not to be approached or judged by a director solely in terms of profit or share value.

• Directors should also give consideration to the long-term interests of the corporation and ancillary interests that might ultimately impact the corporation such as the interests of on such as employees, creditors, suppliers, governments and the environment.

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Duty of LoyaltyArising out of a director’s role as a fiduciary of the corporation is a corresponding duty of loyalty to the corporation, which includes the following:

• a duty to avoid usurping corporate opportunities;• a duty of confidentiality; and • a duty to avoid conflicts of interest.

Duty to Avoid Usurping Corporate Opportunity

Directors have a duty not to take for their own purposes or for the benefit of an entity in which they have an interest, an opportunity that was originally intended for, offered to, or which properly belongs to the corporation, and/or which is only made available to them by which properly belongs to the corporation, and/or which is only made available to them by reason of their position as director of the corporation.

Breach of this duty may result in liability to account for assets or profits acquired by reason of one’s directorship, even where such profit does not necessarily come at the corporation’s expense and even after the director stepped down from his or her position.

Duty of Confidentiality

In connection with the duty outlined above, a director has an obligation to keep allconfidential information of the corporation secure, and not to use such information forpersonal-gain, for the benefit of some other entity in which he or she holds an interest, orfor any other purpose unrelated to his or her duties as a director.

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Duty of Loyalty - Continued

Duty to Avoid Conflicts of Interest

Stemming from their role as a fiduciary to the corporation, directors have a duty not to put themselves in positions of actual or potential conflicts of interests with the corporation; i.e. they must not be put in a situation where they may be tempted or forced to favour interests other than the best interests of the corporation, or to otherwise act inconsistently with their duties as directors of the corporation.

A transaction undertaken despite a conflict of interest is vulnerable to being set aside by a court under both the OBCA and CBCA unless the conflicted director discloses (at the requisite time) the nature and extent of his or her interest (being a personal relationship,

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requisite time) the nature and extent of his or her interest (being a personal relationship, financial or other material interest) in the applicable contract or transaction for which he or she has an interest in a party thereto, or to which he or she is a party him or herself.

The director is thereafter prohibited from voting on any resolution to approve such transaction subject to limited exceptions outlined in the OBCA/CBCA.

Note: The transaction or contract must still be considered fair and reasonable to the corporation at the time it was approved in order to avoid being set aside by a court.

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Duty of CareIn exercising his or her powers and discharging his or her duties, a director is required under the OBCA and CBCA to exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.

This is the prescribed standard of performance against which the actions of directors will be measured.

Who is the duty owed to?

Unlike the fiduciary duty, a director’s duty of care is owed to shareholders, creditors and othercorporate stakeholders, who may each claim the duty has been breached in a givencircumstance.

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What are “comparable circumstances”?

Canadian courts will have regard to all aspects of an impugned transaction including: the kindof business, the time available to make the decision, the alternative options, and the status orqualifications of the particular director. As such, there may be an heightened degree ofcare required from a sophisticated, particularly knowledgeable or experienced director,or a director sitting on a committee who has relevant insight.

The “Business Judgement Rule”

Typically, courts show deference to directors’ judgement and will not second-guess directors’decisions provided such decisions lie within a range of reasonable alternatives, the directorshave taken into account the interests of the various stakeholder groups, and the decision wasmade in good faith and on reasonable grounds.

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Duty of Care - Continued

In fulfilling their duty of care, courts do not impose a standard of perfection ondirectors.

As long as each director is guided solely by his or her informed, prudent andreasonable conclusion as to which alternative is in the best interests of thecorporation, the director’s judgment will be entitled to deference.

In assessing whether directors have met their duty of care, Canadian courts lookprimarily to the quality of the governance process used by the directors in makingtheir decisions.

Note: A sound governance process can help ensure and demonstrate that the

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Note: A sound governance process can help ensure and demonstrate that thedirectors have properly exercised reasonable business judgment.

To meet the appropriate standard of care in fulfilling his or her duties, eachdirector must:

• consider all pertinent facts then known to him or her;

• identify all reasonable alternatives, if any;

• weigh the benefits and risks of each alternative to the corporation; and

• rely in good faith on appropriate and properly instructed advisors such as seniormanagement, accountants and auditors, expert financial advisors and legalcounsel.

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Duty to Comply with the Law

Under both the OBCA and CBCA, each director is required to comply with:

• all articles of the corporation; and

• all by-laws of the corporation;

• all applicable OBCA/CBCA provisions and regulations made thereunder;and

• All other applicable legislation (CBCA s.122(c), OBCA s.134(c)).

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Failure to comply in the law can result in certain risks and liabilities, which will now be considered.

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Directors’ Liabilities

• Liability Under Corporate Statutes

• Liability for Employee Wages and Health and Safety

• Liability for Source Deductions and Tax Remittances

• Liability Under Other Statutes

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• Liability Under Other Statutes

• Liability Under Tort

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Liabilities Under Corporate StatutesCorporate Statutes

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Liability for Failure to Adhere to the Duties

Imposed by the CBCA or OBCA

No provision in a contract, the articles, the bylaws or a resolution relieves a director from the duty to act in accordance with the CBCA/OBCA or the regulations

thereunder or relieves them from liability for a breach thereof (CBCA s.122, OBCA s.134).

Examples:

• Duty to act honestly and in good faith with a view to the best interests of the corporation;

• Duty to exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances; and

• Duty to comply with the Act, regulations, articles, bylaws and unanimous shareholder agreements.

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Liability Under the “Oppression Remedy”

Directors must ensure that a proposed action or exercise of their powers isneither oppressive nor unfairly prejudicial to, or unfairly disregards thereasonable expectations of, any stakeholder of the corporation (including adebt security holder or creditor).

Failure to do so may, at the discretion of the court, result in personal liability for adirector, under the “oppression remedy” afforded to stakeholders (s. 248 of theOBCA and s. 241 of the CBCA).

• Oppressive conduct involves a lack of honesty or fair dealing or conduct that isburdensome or harsh.

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burdensome or harsh.

• Unfair prejudice or unfair disregard of stakeholders’ interests involves unfairconduct, whether intentional or unintentional, that defeats a stakeholder’sreasonably held expectations.

Note: Whether director liability will result may be based, at least in part, on whetherthere is a direct link between the directors’ actions or inactions and the conductsaid to constitute the oppression and whether, in the opinion of the court, it wouldbe “appropriate” for the director to be personally liable to compensate theaggrieved party.

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Liability for Financial Misconduct

Directors may be jointly and severally liable under the OBCA or CBCA for restoringto the corporation any amounts distributed or paid and not otherwise recovered bythe corporation for:

– an improper redemption or purchase by the corporation of its own shares(CBCA 118(2), OBCA 130(2));

– improper declaration and payment of dividends which will render thecorporation insolvent (CBCA 118(2)) OBCA 130(2)); and

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– for the amount of which non-monetary consideration for shares issued is lessthan the fair equivalent of money that the corporation would have receivedhad the share been issued in exchange for money (CBCA s 118(1), OBCA130(1)).

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Liability for Employee Wages and Health and

SafetySafety

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Liability for Employee Wages Under Corporate Statutes

Under the CBCA and OBCA, directors of a corporation are jointly andseverally liable to employees of the corporation for all unpaid debts owing toan employee for services performed for the corporation (CBCA s.119(1), OBCAs.81(1)).

Limits on Director Liability

• directors are only liable if the employee first pursued a remedy against the corporationor proved its claim within six months after the debt became due or after thecorporation began liquidation, dissolution or bankruptcy proceedings;

• directors are only liable for amounts payable while they were directors;

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• directors are only liable for amounts payable while they were directors;

• directors are only liable for a maximum of six months wages (and 12 months accruedvacation if under the OBCA); and

• directors are only liable, in the case of the CBCA, if the action is brought in the twoyears after they cease to be a director, or, if under the OBCA, within two years fromthe time the cause of action was discovered.

Note: Under the CBCA, a director’s liability is, however, subject to a “duediligence” defence where that director can be said to have relied in good faith andreasonably on certain financial statements or expert reports. No due diligencedefence exists under the OBCA.

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Liability for Employee Wages Under Corporate Statutes –

Continued

Who is considered an “employee”?

There is no one test for distinguishing an employee from an independent contractorhowever, a good starting point is to consider whether the person who has beenengaged to perform the services is performing them as a person in business on hisor her own account.

Consider, for example:

•the level of control the corporation has over the worker’s activities;

•whether the worker provides his or her own equipment;•whether the worker provides his or her own equipment;

•the degree of financial risk and responsibility for management held by theworker; and

•the worker’s opportunity for profit in the performance of the task.

What are unpaid “debts”?

• Includes: employee salary or wages, vacation pay, commissions, guaranteedincreases in salary, and reasonable expenses incurred in connection withcarrying out the employee’s duties.

• Excludes: damages for wrongful dismissal, termination or severance pay or lostwages for period employee improperly discharged.

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Liability Under Employment Legislation

Liability for Unpaid Wages - Canada Labour Code (the “Code”) (s.251.1 and s.251.18)

Under the Code, directors are jointly and severally liable to employees for wages (excluding tips and gratuities), vacation pay, general holiday pay, and termination pay or more favourable amounts as agreed in the employment contract or collective agreement for up to six months.

• Liability is limited however, to circumstances where recovery from the corporation is impossible or unlikely and to amounts earned while the director held his or her position as director.

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position as director.

• The Code does not have a limitation period for bringing claims against directors.

• The Code is applicable to those corporations undertaking business within the legislative authority of the federal government (i.e. shipping, navigation, railways, banking, etc.)

Note: A director may appeal an order to pay unpaid wages under the Code, however preliminary payment is required before such appeal will be heard.

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Liability Under Employment Legislation -

Continued

Liability for Unpaid Wages - Ontario Employment Standards Act, 2000 (the “ESA”)

Under the ESA, directors are jointly and severally liable to the employees of the corporation for:

• all debts not exceeding six months’ wages for services performed for the corporation that became payable while they were directors;

• vacation pay accrued for not more than 12 months under the ESA, its regulations, or under a collective agreement; and

• interest on any outstanding wages the director is liable for.• interest on any outstanding wages the director is liable for.

Liability is limited to circumstances where:

• an order from an adjudicator, employment standards officer or the Labour Relations Board has been made against the corporation (or director specifically) which remains unpaid and which is not subject to review; or

• the corporation is insolvent and the claim for unpaid wages has been filed with the receiver or trustee but remains unsatisfied.

Note: Failure to adhere to an order may result in fines of up to $50,000 or imprisonment for a director.

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Liability Under Employment Legislation -

Continued

Liability for Other Offences Under Employment Legislation:

Under employment standards legislation in most Canadian jurisdictions, it is an offence for a director to participate in a breach by the corporation under the legislation. Active misconduct on the part of the director must be proven for such liability to arise.

In accordance with this, most provincial and territorial employment standards In accordance with this, most provincial and territorial employment standards legislation provide for reciprocal enforcement such that a director cannot avoid liability simply by residing in a province outside of where the business of the corporation is carried out.

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Occupational Health And Safety Act

The Ontario Health and Safety Act (the “OHSA”) applies to various actors in agiven work environment, including corporations (as employers) and their individualdirectors. The legislation outlines the duties of these actors as it pertains to ensuinga safe work environment.

In accordance with s. 32 of the OHSA, every director of a corporation must takereasonable care to ensure the corporation complies with the Act, its regulations, orany order made thereunder.

An employer (a corporation), and as a consequence, each director, has anAn employer (a corporation), and as a consequence, each director, has anobligation under the Act to:

• ensure that the equipment, materials and protective devices as prescribed areprovided (s. 25 (1)(a));

• provide information, supervision and instruction to a worker to protect his or herhealth or safety (s. 25(2)(a));

• take every precaution reasonable in the circumstances for the protection of aworker (s. 25(2)(h)); and

• adhere to the strictly enforced reporting obligations for fatalities, critical injuries,accidents, occupational illnesses and injuries.

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Occupational Health And Safety Act - Continued

Consequence of Director Liability

Breach of the OHSA or failure to comply with an order made thereunder constitutesan offence and may result in liability of up to $25,000 (for an individual director),imprisonment up to 12 months, or both.

Due Diligence Defence for Directors

Where a director can demonstrate due diligence on his or her part with respect toworker health and safety, he or she may avoid liability under the OHSA. Duediligence refers to the employer’s legal responsibility to take every reasonableprecaution to prevent injuries and illness and prove that it has done so.precaution to prevent injuries and illness and prove that it has done so.

To aid in establishing the defence, a director should demonstrate that he or she has:

• created and overseen the successful implementation of a system to ensurecompliance with health and safety laws, including undergoing periodic audits;

• created a system to ensure that the Board receives reports on operation andeffectiveness of the system;

• were aware of industry standards in dealing with the risks faced by thecorporation and met those standards; and

• reacted immediately to, and worked to resolve, a system failure.

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Criminal Liability – Bill C-45 (Workplace Safety)

Bill C-45 is federal legislation that amended the Criminal Code andbecame law on March 31, 2004 establishing new legal duties forworkplace health and safety.

Section 217.1 of the amended Criminal Code established a newlegal duty to prevent harm, which is applicable to all directors:legal duty to prevent harm, which is applicable to all directors:

“Everyone who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that

person, or any other.”

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Liability for Source Deductions and Tax

RemittancesRemittances

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Liability for Source Deductions and Tax

RemittancesThe Income Tax Act (Canada) (the “ITA”) requires corporations who make payments such as salaries, benefits or other amounts to employees for providing services to the corporation (see s.153 of the ITA for a list of applicable payments), to deduct and withhold certain amounts from such payments and to remit those amounts to the Receiver General.

Under s. 227.1, those individuals who were directors at the time a corporation failed to make the required deduction or withhold or remit the amount at issue, are joint and severally liable with the corporation for payment of those amounts and any resulting interest or penalties.amounts and any resulting interest or penalties.

Limitations on Director Liability Under the ITA

• Revenue Canada must satisfy at least one of a number of conditions outlined under the ITA before a director can be held liable.

• A director can avoid liability under the due diligence defence in s. 227.1(3) of the ITA where he or she can demonstrate that he or she has exercised the degree of care, diligence and skill to prevent the failure that a reasonably prudent person would in comparable circumstances.

• No action can be brought against a director personally once two years has passed since he or she sat as a director of the corporation.

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Liability for Source Deductions and Tax

Remittances - Continued

• Excise Tax Act (the “ETA”) – Subject to an available due diligence defence,directors may be liable under the ETA for:

• Directing, authorizing or acquiescing in an offence under the ETA (s.96(3));

• Failure of a corporation to remit an amount of net tax as required under the ETA(s.323); and

• Participating or acquiescing to the failure to file a return, making false or deceptivestatements in a return or other document required under the Act (ss.327 & 330).

• Canadian Pension Plan (the “CPP”) – Directors are jointly and severally liable• Canadian Pension Plan (the “CPP”) – Directors are jointly and severally liableunder the CPP for the employee and employer CPP contributions that thecorporation fails to remit (s.21.1).

• Employment Insurance Act (the “EIA”) - Under the EIA, where a corporationfails to deduct and remit to the Receiver General the prescribed amount from theremuneration paid to a person it employs in insurable employment together withthe employer’s premium, those directors sitting at the time of the failure incurliability for these amounts, and any corresponding interest or penalties (s.82(1)).

• Directors are also liable under the EIA for making any false or misleadingrepresentations in statements required under the Act (s.46.1).

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Liability Under Other Statutes

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Liability Under Other Statutes• Securities Legislation – Under the Ontario Securities Act (ss.122, 130, 130.1 &131),

directors can be held liable in respect of material false statements and omissions of necessary statements contained in the required disclosure documents of the corporation, including prospectuses and takeover bid circulars, unless that director can prove one of the stated defences including failure to know of or consent to the filing, a due diligence defence of reasonable grounds to believe the statement was true, or reasonable reliance on what was purported to be a statement by an official.

• Directors may also be liable for failure to make timely disclosure of material changes as required under the Act (s 138.3(4).

• Insider Trading – Under the Ontario Securities Act, a director, considered an insider to the corporation by virtue of his or her position, may be liable if found to have partaken in insider trading, meaning (at the most basic level) trading securities using material information that was not yet available to the general public. Penalty includes the greater of $5,000,000 or three times the profit of such a trade.

• Note: Section 382.1 of the Criminal Code now also prohibits insider trading and conveyance of insider information (s.382.1) , making such an indictable offence with liability of imprisonment for up to ten and 5 years respectively.

• Note: Both the CBCA (s.131) and OBCA (s.138(5)) also prohibit insider trading.

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Liability Under Other Statutes - Continued

• Bankruptcy and Insolvency Act (Canada) – Directors of a bankrupt corporation may be found personally liable (for breaching the Act) simply upon finding that the corporation has committed an offence under the act, and may be convicted and subject to punishment therein (s.204).

• Competition Act (Canada) – Directors may be liable for failing to take reasonable care to ensure that the corporation complies with the Act and regulations or orders made thereunder (s.65(4)).

• Corporations Returns Act (Canada) – Directors may be liable for a corporations failure to file a return or comply with such a demand (s.9(2) & (10)).

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corporations failure to file a return or comply with such a demand (s.9(2) & (10)).

• Consumer Packaging & Labelling Act (Canada) – Directors may be liable for a corporations breach of the Act if conduct amounting to the breach was directed or authorized by, assented to or participated in by the directors (s.20(3)).

• Corporations Information Act (Ontario) – Directors may be liable for authorizing or acquiescing to: (i) the making of a statement submitted or required under the Act that is false or misleading in regards to a material fact, or which fails to state a material fact (s.13), and (ii) the corporation’s failure to observe or comply with an order or requirement under the Act (s.14).

• Pension Benefits Act (Ontario) – Directors may be liable for failing to take reasonable care to ensure that the corporation complies with the Act and regulations or orders made thereunder (s.110(2)).

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Liability Under Other Statutes - Continued

• Environmental Protection Act (Canada) - Section 280.1(3) of the Act imposes a duty on directors to take reasonable care to ensure that the corporation complies with the Act, its regulations and any orders or directions made pursuant to the Act, or else be held liable for such breach.

• Subject to a due diligence defence (s.283), directors may also be liable for an offence committed by the corporation if they were in a position to direct or influence the corporation’s activities that led to the environmental violation or disregard for the lives and safety of others, irrespective of whether the corporation was prosecuted or charged (s.274 & s.280).

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• Environmental Protection Act (Ontario) – Similarly, section 194 of the Ontario Act states that directors have a duty to take all reasonable care to prevent the corporation from committing a number of environmental offences including, but not limited to: illegal discharge of a contaminant, failure to restore the natural environment following a spill, obstruction or refusal to report information regarding the environment and impacts thereto, and contravening orders issued under the Act.

• Liability of a director for breach of this statutory duty can result in fines of up to $4,000,000 per day for a first conviction, and $6,000,000 on a subsequent conviction.

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Liability in Tort

Where a director fails to act within the scope of his or her authority,the common law has held that he or she may be personally liable forthe indebtedness of the corporation.

• Note: A court may, for example, hold a director personally liable where it can be• Note: A court may, for example, hold a director personally liable where it can beshown that the director acted in bad faith in inducing a breach of an employmentcontract by the corporation.

Recent case law also suggests that a director may be personallyliable even if acting in accordance with his or her duty to act in thebest interests of the corporation, and not for self-serving purposes,where he or she participates in a tort committed by the corporation.

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Who we are:Michael Caruso, PartnerMichael Caruso practises in the area of corporate and commercial law, providing advice to domestic and foreign clients in a wide array of industries, including the financial services, technology and innovation, pharmaceutical and life sciences, mining and transportation sectors.

In addition to advising on general corporate and commercial law matters, Mr. Caruso has vast transactional experience including domestic and cross-border private mergers, acquisitions, divestitures, private equity and venture capital investments, debt and equity financings, corporate reorganizations, complex debt restructurings, stream and royalty acquisitions, strategic alliances and casino projects.

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Sara Josselyn, AssociateSara Josselyn practises in the area of corporate and commercial law, providing advice to domestic and foreign clients in a wide array of industries, including the financial services, technology, transportation and pharmaceutical and life sciences sectors.

In addition to advising on general corporate and commercial law matters for emerging/start-up companies to international private and public companies, Ms. Josselyn has experience in domestic and cross-border private mergers, acquisitions, divestitures, private equity and corporate reorganizations.

stream and royalty acquisitions, strategic alliances and casino projects.

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Norton Rose Fulbright

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Norton Rose Fulbright Canada LLP

– Firm Expertise (our “Headlights”)

Financial Institutions Energy Infrastructure, mining

& commoditiesKey Contact (Toronto): Andrew Key Contact (Toronto): Lisa

Key Contacts (Toronto): Dawn

Transport Technology & InnovationPharmaceuticals &

Life Sciences

Key Contact (Toronto): Andrew Flemming

Key Contact (Toronto): Lisa DeMarco Key Contacts (Toronto): Dawn

Whittaker, Marvin Singer

Key Contact (Montreal): Richard Desgagnes

Key Contact (Toronto): Robert Percival

Key Contacts (Toronto): Jason Markwell, Patrick Kierans

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Litigation and Dispute resolution

Intellectual Property

Corporate

Banking and Finance

Practice Areas

The Headlights’ relationship with practice groups

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Page 41: Lunch and Learn - Director's Duties and Liabilities

Technology and Innovation Sector: Scope of

Canadian Practice

We have a strong well established practice across many practice areas and serving a range of clients across the headlight.

• Technology

• Communications, Media and Entertainment

• Consumer • Consumer

• Business Services

Growing Practices in emerging areas – such as Cleantech & Agricultural and Industrial Biotechnology

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Page 42: Lunch and Learn - Director's Duties and Liabilities

Technology and Innovation Sector: Market

Reputation

Strong practice and individual lawyer rankings and recognition across the headlight / practice areas in rakings, including Chambers, Lexpert, PLC, Best Lawyers, Lexpert / American Guides etc. – including in the areas of:

• Technology & Outsourcing

• Intellectual Property

• Regulatory Practices – including data privacy

• Copyright and Entertainment

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Page 43: Lunch and Learn - Director's Duties and Liabilities

Technology and Innovation Sector: Key NRFC

Practitioners

Mix of commercial, corporate and IP lawyers that entirely focus / have a significant focus on the technology sector:

Toronto: Robert Percival, Peter Newell, Roger Watkiss, Brian Gray, Chris Hunter, Mark Sajewycz, Matt Marquardt, Anthony De Fazekas, Lorelei Graham, Lucas Thacker, Jocelyn Kearney + more

Montreal: Marc Tremblay, Jaques Lemieux, Christine Carron + more

Ottawa: Pierre Paul Henrie, Paul Amirault, Yves Caron, Martha Healey,

Calgary: Tony Morris, Harry Ludwig, Mike Flach, Elizabeth Williams, Brandon Potter

Quebec: Kateri-Anne Grenier, Carl Tremblay

A number of others across all offices are involved in sector transactions, but do not necessarily focus on it.

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Disclaimer

Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski LLP, each of which is a separate legal entity, are members (“the Norton Rose Fulbright members”) of Norton Rose Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein helps coordinate the activities of the Norton Rose Fulbright members but does not itself provide legal services to clients.

References to “Norton Rose Fulbright”, “the law firm”, and “legal practice” are to one or more of the Norton Rose Fulbright members or to one of their respective affiliates (together “Norton Rose Fulbright entity/entities”). No individual who is a member, partner, shareholder, director, employee or consultant of, in or to any Norton Rose Fulbright entity (whether or not such individual is described as a Norton Rose Fulbright entity (whether or not such individual is described as a “partner”) accepts or assumes responsibility, or has any liability, to any person in respect of this communication. Any reference to a partner or director is to a member, employee or consultant with equivalent standing and qualifications of the relevant Norton Rose Fulbright entity.

The purpose of this communication is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of any Norton Rose Fulbright entity on the points of law discussed. You must take specific legal advice on any particular matter which concerns you. If you require any advice or further information, please speak to your usual contact at Norton Rose Fulbright.

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