The most widely read magazine for Canadian lawyers
Issue link: https://digital.canadianlawyermag.com/i/50858
opinion BANKING ON CORPORATE BY BRYAN HAYNES Directors' liability, taxes, and the chancellor's foot T he Tax Court of Canada and the Federal Court of Appeal have pre- dominantly held that the standard of care required of directors to meet the due diligence defence test in s. 227.1(3) of the Canadian Income Tax Act is sub- jective. Not only is the basis for these decisions questionable, but the resulting inconsistencies and uncertainties depart from a coherent system of rational law. The section enables directors to escape personal liability for non-remit- tance by corporations of taxes and other deductions withheld at source if they can establish they "exercised the degree of care, diligence and skill to prevent the failure that a reasonably prudent per- son would have exercised in comparable circumstances." The language used in s. 227.1(3) mirrors the standard of care language contained in s. 122(1)(b) of the Canada Business Corporations Act. In 2004, the Supreme Court of Can- ada in Peoples Department Stores Inc. v. Wise held that s. 122(1)(b) is an objective test, thereby modifying and elevating the subjective common law standard of care established in the seminal 1925 case Re City Equitable Fire Insurance Co. The lat- ter held that a director is only required to demonstrate the degree of care, skill, and diligence that could reasonably be expected from him, having regard to his knowledge and experience. Regrettably, the Federal Court of Appeal in 1997's Soper v. Canada held that s. 227.1(3) largely adopted the common law subjective test (and also included an objective element). The court described its "inherently flexible" and contradic- tory test as nothing less (clear) than "objective subjective." Soper has since, for the most part, been followed. Buck- ing the trend however, Justice Theodore Margeson of the Tax Court of Canada in 2009's Jarrold v. R. correctly held that the test in Soper was superseded by Peoples. It is difficult to reconcile the court's conclusion in Soper. Section 227.1(3) refers to "a reasonably prudent person," not to "a person of his knowledge and experience." Clearly, the subjective ele- ments of the common law test were replaced by the objective "reasonably prudent person" test. In Soper, the court held the words "in comparable circumstances" embrace the subjective elements of an individual director's knowledge and experience. The distinction between "in comparable cir- cumstances" and "having regard to his knowledge and experience" is self-evident. As was held by the Tax Court of Canada in White v. Minister of National Revenue: "The word 'circumstances' in my opinion, refers to the operational and administra- tive situation of the corporation in which the director who has responsibility finds himself, not to the personal attributes or characteristics which he brings (or does not bring) to the corporate duties." This interpretation was confirmed in Peoples which held that the words "in compa- rable circumstances" require the context in which a given decision was made to be taken into account, as opposed to subjec- tive elements relating to the competence (or incompetence) of any given director. Finally, in Soper the court concluded by using the words it did, Parliament intended to retain the subjective elements of the common law test. Justice Joseph Robert- Peoples Department Stores Inc. v. Wise: http://csc.lexum.umontreal.ca/ en/2004/2004scc68/2004scc68.html Soper: http://www.canlii.org/en/ca/fca/ doc/1997/1997canlii6352/1997canlii6 352.html Jarrold v. R.: http://decision.tcc-cci.gc.ca en/2009/2009tcc164/2009tcc164.html son stated: ". . . had Parliament wished to strengthen the standard of care imposed at common law, it could have easily done so by adopting appropriate language." Adopt appropriate language it did — language which departs conspicuously from the common law test. Had Parliament intend- ed to retain the subjective test, it would have used the same or similar words. By using different words, Parliament must therefore have intended a departure from the common law test. This interpretation was confirmed in Peoples, which found that the language in s. 122(1)(b) emu- lates the language proposed by the 1971 Dickerson report, which recommended an objective standard of care and preceded the enactment of the Canada Business Corporations Act by four years. Given that Parliament intended an objective standard in using the words it did in s. 122(1)(b), and given that the same Parliament subsequently used identical words in drafting s. 227.1(3), the principle of presumption of statutory coherence requires a harmonic interpre- tation between the two provisions. The subjective test is uncertain and unpredictable. Requiring that a director only exercise the degree of care which is commensurate with his knowledge and experience harks back to the days when equity was measured by the length of the chancellor's foot. No two directors have exactly the same knowledge and experi- ence. Section 227.1(3) imposes liability on all directors of a corporation, not just those who are familiar with the tax remittance requirements. As the time- honoured adage goes, nul n'est censé ignorer la loi. This is the final column for Bryan Haynes (haynesb@bennettjones.com), a partner and co-chairman of the commercial trans- actions practice group at Bennett Jones LLP. www. C ANADIAN Law ye rmag.com SEPTEMBER 2010 11