Citation: 2011 TCC 488
Date: 20111019
Docket: 2009-3609(GST)I
2009-3610(GST)I
2009-3611(GST)I
BETWEEN:
FRANÇOIS MILANI,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Tardif J.
[1]
First of all, the
parties agreed that the three appeals, bearing docket numbers 2009-3609(GST)I,
2009-3610(GST)I and 2009-3611(GST)I, would be heard on common evidence.
[2]
It was also agreed that
the only issue was whether the resignation of the director François Milani
(the appellant), dated April 1, 2006, could be set up against the respondent;
if so, the appellant submits that the assessments under appeal were barred by a
limitation period, and must therefore be vacated.
[3]
The appellant called
the notary as a witness. The notary testified that he prepared certain
documents related to the resignations, such as the minutes and inherent
records, and that he filled out the forms necessary to register everything with
Quebec's enterprise registrar.
[4]
The notary asserted
that he prepared the documents in question at the request of Juan Carlo Massironi,
whom he knew personally, with little or no information or knowledge about the
activities of the corporations affected by the resignations.
[5]
An important and specific
detail should be noted: Mr. Massironi, who the evidence suggests was an
important and perhaps even strategic player, did not testify. He did not attend
the hearing.
[6]
The notary's testimony
was essentially about the documents signed by the appellant, who was in the courtroom.
This Court did not admit into evidence the private writings signed by persons
who were not at the hearing, since this would have prevented any possibility of
cross-examination.
[7]
The notary tried, quite
unconvincingly, to explain why there were two different versions of certain
documents that had the same purpose, particularly the amending declaration, despite
the fact that the documents were very important. The differences involved the
contents of the documents, and sometimes even the signatures.
[8]
The registration of
that document was similarly controversial. According to the notary, it was
prepared and signed on April 1, 2006, and sent to the Quebec enterprise
registrar much later; based on the date stamp, it was received and registered
on January 9, 2007.
[9]
The notary claims to
have sent in the documents around October or November. He said that he was
taken aback with respect to the date on the stamp, thereby insinuating that
there were processing delays of some sort. This suspicion is surprising,
especially since the notary stated and admitted that he had deliberately held
on to certain documents because his fees had not been paid, even though the
resulting date-related issues might have financial and other repercussions far
out of proportion to the amount of his fees. The amount of his unpaid fees was
not discussed, but it appears that the assessments total a few million dollars.
Since the notary must know when his fees were paid, he could have provided that
information to provide a better idea of when the famous documents were likely
sent in .
[10]
The appellant testified
second, claiming in clear and categorical terms that he formally resigned on
April 1, 2006, as the notary had stated earlier.
[11]
Apart from this
resignation date, his testimony was vague and confusing, even to the point of
denying certain admissions made by his tax lawyer.
[12]
His memory became very
selective when it came to explaining his involvement in the companies' affairs
after April 1, 2006. He always came back to the explanation that,
following his resignation as director on April 1, 2006, Mr. Massironi
had asked him to continue taking care of what he characterized as customer
service. A few times, he cited youth and inexperience as excuses for unclear or
contradictory statements.
[13]
He said that he
accepted the specific and circumscribed mandate given by Mr. Massironi because
most of the complaints or concerns involved customers whom he had personally
served, and for whom he felt responsible.
[14]
It would have been
interesting to hear the account of Mr. Massironi, who gave the mandate. The
appellant endlessly repeated that anything he did after
April 1, 2006, was routine and unimportant.
[15]
When asked to explain
his signature on several documents after his April 1, 2006,
resignation, the appellant stated that these were isolated, unimportant actions
that were taken upon the express request of Mr. Massironi, or out of ignorance
and lack of experience.
[16]
Faced with another
document, he said that a digit was not a five, which would correspond to May
and would be subsequent to his alleged resignation, but, rather, a three, which
meant that the signature was affixed in March, prior to his resignation.
[17]
The respondent clearly
prepared her impeachment of the witness's credibility well. She showed that,
following his resignation, the appellant alone signed several cheques, for
amounts totalling at least $1,000,000, on the company's behalf. He had the
power to sign cheques for the three companies, without a countersignature,
subsequent to April 1, 2006.
[18]
The appellant admitted
that he signed several notarial documents as a director after April 2006.
[19]
He admitted that he
signed, and recognized his signature on, several documents bearing dates
subsequent to April 1, 2006.
[20]
On several occasions, the
appellant asserted that these were routine or secondary matters. As for the
fact that his signature alone was sufficient on cheques for very substantial
amounts, he repeated that this needs to be seen in context, because the
operations of the companies of which he was director were substantially in
excess of a few million dollars. The commercial magnitude of the business
generated by the three companies to which the appellant refers in inviting the court
to consider the context is very difficult to reconcile with the ignorance,
youth and lack of experience to which he also refers to account for certain
inconsistencies.
[21]
The appellant's position
is very easy to summarize. He claims that he formally resigned as director of
the three assessed companies, that is to say, the companies in docket numbers
2009-3609(GST)I, 2009-3610(GST)I and 2009‑3611(GST)I.
[22]
Citing subsection 323(1)
of the Excise Tax Act (ETA), he submits that the assessments under
subsection 323(1) are barred by a limitation period, and must therefore be vacated.
|
Name
of file
|
Docket
number
|
Company
name
|
Assessment number
|
Date
of assessment
|
|
François
Milani
|
2009-3609(GST)I
|
6090532 Canada Inc.
|
PM-14735
|
January 8,
2009
|
|
François
Milani
|
2009-3610(GST)I
|
Construction Sopra inc.
|
PM-14731
|
January 8,
2009
|
|
François
Milani
|
2009-3611(GST)I
|
Construction Spazio Inc.
|
PM-14399
|
September 4,
2008
|
[23]
The appellant submits
that his resignation alone, effective April 1, 2006, is sufficient to defeat
the assessments. He adds that any follow-ups or repercussions, as far as the
reporting or registration of his resignation are concerned, were not his
responsibility. The appellant further submits that the ensuing regulatory and
documentary requirements, such as record-keeping and notices, were no longer
his responsibility because, from the moment of his resignation onward, he no
longer had any authority over the management of the corporations concerned, and
other people were responsible for registering his resignation with the
competent authorities.
[24]
As for the many things
done after April 1, 2006, the appellant repeatedly submitted that they were
essentially immaterial details in the ordinary course of business, which did
not put the essence of his resignation in doubt or in issue.
[25]
The evidence,
consisting essentially in the testimony of two witnesses, namely, the appellant
himself and the notary who prepared the three resignation documents, has
established on a balance of probabilities that the appellant participated in and
unambiguously contributed to administration and management, and, more
specifically, to the affairs of the companies, not only on day-to-day matters, but
also on very important acts closely tied to the three companies' vocations.
[26]
Faced with this obvious
reality, the appellant admitted that he was a de facto director of the
companies, thereby deferring the effective date of the resignations from the
date given —
that is, April 1, 2006 — to January 9, 2007.
[27]
In conclusion, the
appellant submits that even though it is conceded that he continued to act as de
facto director, the assessments concerning the companies that benefited
from this de facto management are nonetheless void, because more than
two years elapsed between the last actions taken as director and the
assessments. The appellant asserts that the date that the notices of
change were received was November 16, 2006. He says that the delay
between that date and January 9, 2007, the date of the stamp, cannot
be attributed to him. He vigorously asserts that the respondent has been
unable to clearly show concrete acts, other than acts established by the
numerous documents, which include cheques and notarial deeds.
[28]
For her part, the
respondent submits that the April 2006 resignations are not true resignations,
and that the only date that should be taken into account is January 9,
2007, for all three companies, because that is the date that a third party
became aware of the amending declaration with Quebec's enterprise registrar .
Analysis
[29]
Section 323 of the ETA makes the director of a company liable for
the GST collected by the company, unless one of the following defences can be
made out:
a.
the notice of
assessment was issued more than two years after the director ceased to be a
director; or
b.
the person
exercised care, diligence and skill as a director.
[30]
In the case
at bar, the appellant only raised the argument concerning the limitation period.
[31]
The
appellant never raised the defence of care, diligence and skill, and cannot
rely on it.
[32]
Given the importance of
the credibility of the evidence that has been adduced, it seems appropriate to
reproduce an excerpt from the decision of Justice Lamarre in Tehrani v. R,
which was affirmed on appeal
(2007 FCA 12):
13 In my view, the documents presented
at trial by the appellant constitute self-serving post facto evidence,
and they should, if they really existed in 1998, have been disclosed as soon as
they were requested by the trustee or by the CCRA.
14 I am not convinced that the appellant truly
resigned on September 29, 1998. As the sole letter of resignation left was
signed in 2001, the assessment made pursuant to section 227.1 of the Act
on August 28, 2002, was made within the time limit prescribed in subsection
227.1(4). Since there was no other argument put forward by the appellant, he is
jointly and severally liable with the corporation for a debt owed to the
Minister in the amount of $114,655.
[33]
On the same
question of credibility, Justice V.A. Miller wrote as follows:
23 In assessing credibility
I can consider inconsistencies or weaknesses in the evidence of witnesses,
including internal inconsistencies (that is, whether the testimony changed
while on the stand or from that given at discovery), prior inconsistent
statements, and external inconsistencies (that is, whether the evidence of the
witness is inconsistent with independent evidence which has been accepted by
me). Second, I can assess the attitude and demeanour of the witness. Third, I
can assess whether the witness has a motive to fabricate evidence or to mislead
the court. Finally, I can consider the overall sense of the evidence. That is,
when common sense is applied to the testimony, does it suggest that the
evidence is impossible or highly improbable.
Analysis
of the Act
[34]
Section 323 of the ETA holds the director of
a corporation solidarily liable with the corporation for the remittance of tax that
has been collected:
323. (1) If a corporation fails to remit an amount
of net tax as required under subsection 228(2) or (2.3) or to pay an amount as
required under section 230.1 that was paid to, or was applied to the liability
of, the corporation as a net tax refund, the directors of the corporation at
the time the corporation was required to remit or pay, as the case may be, the
amount are jointly and severally, or solidarily, liable, together with the
corporation, to pay the amount and any interest on, or penalties relating to,
the amount.
[35]
The ETA
contains two defences on which a director can rely: diligence, which is referred
to in subsection 323(3) of the ETA, and a limitation period, which is established
by subsection 323(5):
(3) A director of a corporation is not liable for a failure
under subsection (1) where the director exercised the degree of care, diligence
and skill to prevent the failure that a reasonably prudent person would have
exercised in comparable circumstances.
(5) An
assessment under subsection (4) of any amount payable by a person who is a
director of a corporation shall not be made more than two years after the
person last ceased to be a director of the corporation.
It should be noted
that subsection 323(5) of the ETA bars the assessment of a director on the
basis of personal liability two years after he or she "last ceased to be a
director of the corporation."
Limitation
period
[36]
Subsection 323(5) of the ETA is similar to subsection
227.1(4) of the Income Tax Act, and the case law and scholarly
writing draw on the interpretation of each provision in order to interpret the
other provision.
[37]
According
to the case law, in order to ascertain the point when the person ceased to be a
director, one must look to the law under which the company was incorporated. In
Kalef v. R.,
the Court of Appeal stated:
10 The Income Tax Act
neither defines the term director, nor establishes any criteria for when a
person ceases to hold such a position. Given the silence of the Income Tax
Act, it only makes sense to look to the company's incorporating legislation
for guidance. . .
[38]
The instant
appeal involves one company incorporated under federal legislation, the Canada
Business Corporations Act (CBCA), and two companies incorporated under a
former Quebec statute, the Companies Act,
so the definition of the office of director and the methods of resignation from
that office must be analysed under both statutes.
CBCA: 6090532 Canada Inc.
[39]
The CBCA,
under which 6090532 Canada Inc.
was incorporated, defines a director as follows:
2. (1) In
this Act,
…
"director", "directors" and "board of
directors"
"director" means a
person occupying the position of director by whatever name called and "directors"
and "board of directors" includes a single director;
[40]
Under the
CBCA, a director's office can end as follows:
108. (1) A director of a corporation
ceases to hold office when the director
(a) dies
or resigns;
. . .
With respect to the
effective date of a resignation, subsection 108(2) provides:
108. (2) A resignation of a director
becomes effective at the time a written resignation is sent to the corporation,
or at the time specified in the resignation, whichever is later.
Thus, in order to be
valid, a resignation must be in writing.
[41]
In order to
protect third parties, the CBCA provides that a corporation affected by a
resignation or by any change must notify the Director of the change within 15
days after the change is made:
Notice of
change of director or director's address
113. (1) A corporation shall,
within fifteen days after
(a) a change is made among its directors,
or
(b) it receives a notice of change of
address of a director referred to in subsection (1.1),
send to
the Director a notice, in the form that the Director fixes, setting out the
change, and the Director shall file the notice.
Interested persons,
such as a director who has tendered his resignation, may ask a court for an
order compelling the corporation to send such a notice:
(2) Any interested person, or the Director, may apply to a court for an
order to require a corporation to comply with subsection (1), and the court may
so order and make any further order it thinks fit.
[42]
The
appellant tendered Exhibit A-1-2, a letter of resignation dated
April 1, 2006, but, based on the notary's testimony, no notice was
sent by 6090532 Canada Inc. until
November.
[43]
The
authenticity of the document, especially in relation to the date, is not very
credible.
[44]
The
appellant did not commence the procedures set out in the statute to compel the
corporation to send the notice of change of director; on the contrary, he
continued to sign documents, including notarial contracts and cheques, on the
corporation's behalf. The reality is that he continued to act as a director. In
fact, during the discussions and negotiations with the respondent's
representatives, the resignation of April 1, 2006, was never mentioned. It is
important to recall that the corporation had the benefit of a tax specialist's
advice. After categorically asserting that he did nothing of significance after
April 1, 2006, he was forced to acknowledge his signature on cheques for substantial amounts, having had full authority
to sign such cheques as well as notarial deeds and other documents.
[45]
He argued that these
were small occasional mandates given to him by Mr. Massironi. Mr.
Massironi did not come before this Court to testify.
[46]
In her
recent decision in Campbell, Justice
Campbell wrote as follows:
22 Taxpayers,
who have not strictly adhered to specific requirements for resignation as a
director under the provincial corporate legislation, have nevertheless been
held to be personally liable because they did not validly resign. (Zwierschke
v. M.N.R., [1991] 2
C.T.C. 2783, 92 D.T.C. 1003 (T.C.C.), and Shepherd v. The Queen, 2008 D.T.C. 4284.)
[47]
It is also very
interesting to consider excerpts from the decision of Justice Bell in Netupsky:
24 In
Hattem v. The Queen, 2008 TCC 32, [2008] T.C.J. No. 17, Lamarre‑Proulx
J. concluded that a resignation would not be valid unless corporate
requirements for notification of a change of directors were observed. Appellant
counsel relied on the decision in Netupsky v. The Queen, [2003] G.S.T.C. 15, and submitted that
those remarks in Hattem were obiter. Counsel submitted that,
following Netupsky, a director's letter of resignation will not be
invalid simply because filing did not occur with the appropriate governmental
office. In particular, this would not be required in the present appeal
pursuant to the wording of section 178 of the Newfoundland and Labrador Corporations
Act.
25 The
Hattem case was decided under the Quebec Companies Act, R.S.Q., c. C-38,
on the basis that a document will not be valid against third parties if it is
not filed with the provincial corporate registry.
26 The
Newfoundland Corporations Act relevant to this appeal contains
provisions similar to those contained in the Quebec Companies Act. At
paragraphs 31 and 32 of the Hattem decision the following comments were
made:
31 If a director resigns from the board of a
corporation that is a tax debtor, and wishes the resignation to be a juridical
act that is valid as against the Minister, then, according to the Quebec Companies
Act, that director must notify the Minister of his resignation in the
course of the exchanges of correspondence regarding the corporation's tax debt
and the liability of its directors. I do not think that statutes of the
other provinces or the federal Act concerning companies are any different in
this regard.
32 According to the evidence adduced, it appears
that it was Mr. Hattem who discussed the corporation's debt with the Minister's
employees, both for himself and for the appellant. As indicated earlier, when
the employees told him that they were contemplating an assessment against him
under section 323 of the Act, he pointed out that he had resigned from his
position as director. He sent them a copy of the amending declaration filed
with the enterprise registrar on February 19, 2002. The employees accepted this
and so informed him on July 21, 2005. They continued their proceedings
against the appellant. It must be recalled that the appellant had signed on
June 2, 2005 a power of attorney authorizing her lawyer to discuss the
corporation's affairs with Revenu Québec. The assessment against her is dated
August 31, 2005.
27 Following
the Hattem decision, the Appellant's resignation would be invalid as he
failed to send notice to the corporate registry. In addition, the
Appellant did not remember sending one. Although a copy of the letter was found
on the corporate registry file of another company, Rent-Alls Ltd., this only
added further questions to the issue of the authenticity of this letter of
resignation.
28 Although
sending this letter to the corporate registry may not have been detrimental as
suggested by the Appellant, I find it troubling that, even though it was found
in another corporate registry file belonging to Rent-Alls Ltd., it bore no
registration stamp affixing a date of registration and document number.
Ultimately there was no evidence that addressed the important question of how
it found its way to the corporate file belonging to another company owned by
the Appellant.
29 In
Moll v. The Queen, 2008 TCC 234, 2008 D.T.C. 3420, V.A. Miller J.
held that the director's resignation in that case was invalid because there
were questions of authenticity. The taxpayer in Moll had submitted only
photocopies, failed to inform the Minister of his resignation until the
appeal and continued to act as a director.
30 Remembering
that the onus is upon the Appellant to adduce evidence in support of the
authenticity of the letter of resignation, I must conclude that he has not
done so and that, consequently, he did not resign from CRL on December 31,
2000. There were some inconsistencies in evidence with the discoveries and with
the Appellant's prior recollection of events. During cross‑examination,
the Appellant contradicted statements made during the discoveries as to where
the letter of resignation was kept and how it had surfaced. There was also some
doubt raised as to whether the letter was actually written on December 31,
2000. The Appellant never informed third-party creditors of his resignation
nor did he inform CRA until August 2006 despite it being clearly in his
interest to do so.
[48]
Justice
Campbell concludes her analysis as follows:
31 Even
if I had concluded that the Appellant had validly resigned on December 31,
2000, I believe that, as the Respondent suggested, he remained a de facto
director of CRL after December 31, 2000. He never informed third‑party
creditors or CRA that he had resigned. He never informed CRA during the
pre-assessment proposal in 2004 that contained standard questions as to whether
he continued to act as a director nor did he advise CRA during meetings in
2005.
Construction Sopra and Construction Spazio
[49]
Construction
Sopra (Sopra) and Construction Spazio (Spazio) were governed by the Quebec Companies
Act, which provided:
123.76. Notwithstanding the expiry of his term, a
director remains in office until he is re-elected, replaced, or removed.
A director may
resign from office by giving notice to that effect.
It should be noted
that the Companies Act has no requirements concerning the form of a
notice of resignation, unlike the CBCA, which states that a resignation must be
in writing.
[50]
Like the
CBCA, the Companies Act requires a company to issue an amending
declaration in the event of a
change of directors, which occurs, for example, if a director resigns. And like
the CBCA, it enables a director who has tendered a resignation to compel the
company to comply with it:
123.81. Within 15 days after a change
is made to the composition of the board of directors, the company must give a
notice of a change by filing a declaration to that effect in accordance with
the Act respecting the legal publicity of enterprises (chapter P-44.1).
On the
motion of any person concerned or the enterprise registrar, the court may
require a company to comply with this section, and take any other appropriate
measure that it thinks fit.
[51]
According
to the notary's testimony, an amending declaration was prepared for Spazio on April 1, 2006, but was only
sent out in November or December 2006. It should also be noted that the
appellant undertook no efforts to compel Spazio to send out this amending
declaration. The appellant argues that, following his resignation on April 1, 2006,
he did not have the authority to ask or force the company to register his
resignation by means of the appropriate notices to the enterprise registrar.
However, he had the authority to sign cheques, notarial deeds, and all manner
of documents based on which a third party could believe that he was still a
director of the companies concerned. Moreover, he only raised the resignation
at the objection stage.
[52]
No amending
declaration was produced for Construction
Sopra; the only things produced were a letter of resignation and a resolution
signed by the appellant.
[53]
The Act
respecting the legal publicity of sole proprietorships, partnerships and legal
persons (ALP), which was replaced by another
statute on February 14, 2011, but was in force during the period in question,
provides:
62. The information relating
to each registrant is proof of its contents in favour of third persons in
good faith from the date on which it is entered in the statement of
information. Third persons may submit any proof to refute the information
contained in a declaration or in a document transferred to the enterprise
registrar under section 72, 72.1 or 73.
That
information shall include:
…
(6)
the names and
domiciles of the directors, with an entry indicating the position held by each;
…
82. Information relating to a
registrant may be set up against third persons from the time it is entered in
the statement of information. Third persons may submit any proof to refute
the information contained in a declaration or in a document transferred to
the enterprise registrar under section 72, 72.1 or 73.
That
information shall include:
…
(6) the
names and domiciles of the directors, with an entry indicating the position
held by each;
[54]
The
evidence adduced by the appellant does not convincingly refute the
registration, especially since the appellant continued to sign the cheques and
notarial deeds in the course of business.
[55]
The
following analysis by Judge
Landry of the Court of Québec on the effect of a resignation on a director's
liability under the Income Tax Act was cited by the respondent. Although
the decisions of that court are not binding on the Tax Court of Canada, the
analysis of the legislation that Judge Landry provides is both interesting and
on point:
[translation]
[43] In
Quebec, the director of a company governed by the Companies Act can resign "orally",
which means that there is no obligation to put his resignation in writing.
123.76 Notwithstanding the expiry of his
term, a director remains in office until he is re-elected, replaced, or removed.
A director may
resign from office by giving notice to that effect.
123.81
Within 15 days after
a change is made to the composition of the board of directors, the company must
give a notice of a change by filing a declaration to that effect in accordance
with the Act respecting the legal publicity of sole proprietorships,
partnerships and legal persons (chapter P‑45).
On
the motion of any person concerned or the enterprise registrar, the court may
require a company to comply with this section, and take any other appropriate
measure that it thinks fit.
(Emphasis
added.)
[44]
This is different from the Canada Business Corporations Act (CBCA) which requires a "written
resignation":
108. (1) Ceasing to hold office – A
director of a corporation ceases to hold office when the director
(a) dies
or resigns;
(b) is
removed in accordance with section 109; or
(c) becomes
disqualified under subsection 105(1).
(2) Effective
date of resignation – A resignation of a director becomes effective at the time
a written resignation is sent to the corporation, or at the time
specified in the resignation, whichever is later.
113.
(1) Notice of change
of director or director’s address – A corporation shall, within fifteen days
after
(a) a
change is made among its directors, or
(b) it receives a
notice of change of address of a director referred to in subsection (1.1).
(Emphasis
added).
[45] In
addition, the Act respecting the legal publicity of sole proprietorships,
partnerships and legal persons (ALP) provides as follows:
62. The information relating to
each registrant is proof of its contents in favour of third persons in good
faith from the date on which it is entered in the statement of information.
Third persons may submit any proof to refute the information contained in a
declaration or in a document transferred to the enterprise registrar under
section 72, 72.1 or 73.
82.
Information relating
to a registrant may be set up against third persons from the time it is
entered in the statement of information. Third persons may submit any proof
to refute the information contained in a declaration or in a document
transferred to the enterprise registrar under section 72, 72.1 or 73.
That
information shall include:
…
(6) the
names and domiciles of the directors, with an entry indicating the position
held by each;
[46] This
raises the following question: Can a resignation that has not been the subject
of a change to the appropriate government register be set up against the
Minister of Revenue of Quebec on the basis of the limitation period contemplated
by the second paragraph of section 24.0.2 of the Act respecting the
Ministère du Revenu? Or does section 82 of the ALP delay the effective
date of a director's resignation until the moment an amendment is entered in
the enterprise registrar's records?
[47] It is settled law that the obligation to have a
resignation (or other information) entered in the register is not incumbent on the
resigning director; rather, it is incumbent on the company itself. Failure to
register cannot be set up against a director with a view to "setting aside"
his resignation if he did indeed resign and the resignation was in good faith.
[48] This
leads Martel and Martel to the following conclusion on the subject, in their
treatise entitled La compagnie au Québec:
21-197
Directors may resign
from the board at any time. There is no set formula for tendering such a
resignation, and Part I of the Companies Act contains no rules on the
subject. In practice, for evidentiary reasons, it is better to tender one's
resignation in writing, but this is not essential: a director may tender his
resignation orally at a meeting of the board, and have the resignation entered
in the minutes of the meeting. In the absence of contrary stipulations in
the company's by‑laws, an effective resignation is not conditional on the
company's acceptance: it is sufficient that it be duly received by the company,
for example through its president. Once tendered, the resignation cannot be
withdrawn without the company's consent.
. . .
21-202 It should also be noted that it is in
the resigning director's interest to ensure that the notice of change of
directors, reporting his resignation, is duly filed in Québec or in Ottawa, because
there is a legal presumption that a person who is designated as a director in
the most recent notice sent to the enterprise registrar or the Director, holds
the office of director. Nonetheless, this presumption can be rebutted, and only
third parties in good faith can rely on it.
21-207 As for Part IA of the Companies
Act, the legislator was content to declare that a director "may resign
from office by giving notice to that effect." Presumably this notice,
whether in writing (preferable for proof) or not, is sufficient to give effect
to the resignation, and that the board's acceptance is not required. And
presumably, though this is not specified, the resignation cannot be
retroactive.
[49]
Therefore, the court must decide whether a director has truly resigned based
on the evidence adduced at the hearing.
[50]
In this regard, it should be borne in mind that the appellant has the onus of
proving his resignation, and, when it is in issue, the date thereof, given the
presumption that an assessment is valid.
[Emphasis added.]
[51] An
analysis of the case law regarding resignations, resulting from litigation
against directors in their personal capacity, reveals a wide variety of
situations.
R.S.C. 1985, 5th Supp,
c. 1.
R.S.C. 1985, c. C-44.
R.S.Q.,
c. P-45.
Migneault v. Inspecteur général
des Institutions financières, J.E. 93-1229 (C.Q.); C.C.Q. v. Légaré,
J.E. 98‑1575 (C.Q.); Aikens v. St-Pierre J.E. 97-1827 (C.Q.);
Gagnon v. S.M.R.Q., [2004] R.D.F.Q
360 (C.Q.); Commission de la construction du Québec v. Raymond,
J.E. 2001-951 (C.Q.); C.C.Q. v. Mathieu DTE 2005T-193 (C.Q.); C.C.Q.
v. Marceau-Morin B.E. 2006 BE-272 (C.Q.); Girard v. S.M.R.Q., [2008]
R.D.F.Q. 251 (C.Q.).
Supra, note 8.
Maurice Martel and Paul
Martel, La compagnie au Québec, vol. 1, Les aspects juridiques (Montréal:
Wilson & Lafleur, 2010).
Johnson v. M.N.R. [1948] S.C.R. 486; St‑Georges v. S.M.R.Q.,
D.F.Q.E. 2007 F-113 (C.A.); Distributeurs Clé D'or Inc. v. S.M.R.Q.,
D.F.Q.E. 88F-20 (C.A.); Québec (Sous-ministre du Revenu) v. Dupuis, J.E. 96‑1883
(C.A.); Capobianco v. S.M.R.Q., J.E. 2007-1837 (C.A.);
Ouahidi v. S.M.R.Q.,
D.F.Q.E. 2008F-103 (C.Q.); Laplante v. S.M.R.Q., D.F.Q.E. 2008F-85
(C.Q.); Lehoux v. S.M.R.Q., D.F.Q.E. 2008F-6 (C.Q.); Gilbert v. S.M.R.Q.,
D.F.Q.E. 2008F-68 (C.Q.); Vachon v. S.M.R.Q., J.E. 2009‑1326
(C.Q.)
Exhibit D-10.
In this regard, see Ouahidi v. S.M.R.Q.
D.F.Q.E. 2008F‑103 (C.Q.); Laplante v. S.M.R.Q. D.F.Q.E. 2008F-85
(C.Q.); C.C.Q. v. Couture J.E. 93-1180 (C.Q.);
Martel and Martel, supra,
note 10.
It should be noted
that the edition of La compagnie au Québec cited by Judge Landry is the most
recent one, and it is more up to date than the Act referred to by Justice Proulx
in Hattem, cited at paragraph 56.
[56]
The Business
Corporations Act (BCA), which, since February 14, 2011, has applied to
corporations incorporated in Quebec, requires a written letter of resignation, as the CBCA already has:.
Section 142 of the BCA reads:
142. A director ceases to hold
office when he or she becomes disqualified from being a director of a
corporation, resigns or is removed from office.
The
resignation of a director becomes effective at the time the director's written
resignation is received by the corporation, or at the time specified in the
resignation, whichever is later.
[57]
The Act
respecting the legal publicity of enterprises (LPA), which replaced the Act
respecting the legal publicity of sole proprietorships, partnerships and legal
persons on February 14, 2011, provides as follows with respect to the publicity of rights and the
ability to set up registered information against third parties:
33. Unless an exemption established by regulation of
the Minister applies, the registration declaration must state:
.
. .
[Second paragraph] The
declaration must also state, if applicable:
. . .
(2) the names and domiciles of the directors, and the positions
they hold or, if all powers have been withdrawn from the board of directors by
a unanimous shareholder agreement entered into in accordance with the laws of
Québec or a Canadian jurisdiction other than Québec, the names and domiciles of
the shareholders or third persons having assumed those powers;
. . .
41. The registrant must update the information
required by sections 33 to 35 to be contained in the register concerning the
registrant by filing an updating declaration within 30 days after the date on
which any change occurs, unless a shorter period is prescribed by law.
. . .
98. The following
information relating to a registrant may be set up against third persons from
the time it is recorded in the statement of information and is proof of its content
for the benefit of third persons in good faith:
. . .
(6) the names and domiciles of the directors and the
positions they hold or, if all powers have been withdrawn from the board of
directors by a unanimous shareholder agreement entered into in accordance with
the laws of Québec or a Canadian jurisdiction other than Québec, the names and
domiciles of the shareholders or third persons having assumed those powers;
(7) the date of entry into office and, if
applicable, the date of cessation of office of the persons referred to
in subparagraphs 6 and 10;
. . .
Third
persons may submit any proof to refute information contained in a document
filed with the registrar or
transferred under an agreement entered into under section 117 or 118.
The
content of section 98 is very clear. The provision is an essential measure to
notify all third parties, including the respondent. The information involved is
highly pertinent and must be updated regularly. Under the second paragraph of
section 98, third parties "may submit any proof to refute information contained in
a document filed with the registrar."
De facto director
[58]
Even if a person
has tendered a statutory resignation in proper form,
the fact that the person continues to act as a director prevents him from
availing himself of subsection 323(5)
because he can be considered a de facto director in such a case. In this
regard, it is helpful to cite Justice Proulx in Hattem, where he quotes from Paul Martel:
33 A
person who holds himself out to third parties as a director becomes by virtue
thereof a de facto director. I quote author Paul Martel in Précis
de droit sur les compagnies au Québec, 1st ed. (Montréal: Wilson &
Lafleur, Martel Ltée, 2000), at pages 465 and 489:
[translation]
. . .
As the name suggests, a de
facto director will be considered a director where, in effect, he usurps the position by engaging
in acts that are normally reserved for directors, such as participating in
meetings of the board of directors, signing resolutions of the board, making or
taking part in management or disposition decisions, giving instructions on
behalf of the company, holding himself out to third parties as a director, etc.
. . .
. . .
A director who resigns,
but in fact continues to act, and hold himself out to third parties, as a
director of the company, risks being considered a de facto director
despite that resignation, and, as such, remaining subject to the
responsibilities that the law imposes on directors.
It should be emphasized,
moreover, that resigning directors would do well to ensure that the notice of
change of directors form indicating their resignation is duly filed in Quebec
City or Ottawa because of the statutory presumption that persons designated as
directors in the notice most recently filed with the Inspector General or
Director actually hold that position: (QCA, s. 123.31(2) and (3); CBCA,
s. 253(2); ALP, s. 62(6). This presumption is, however,
rebuttable, and can only be relied upon by third parties who are in good faith.
. . .
34 The
evidence shows that the appellant continued to hold herself out as a director
to the Minister's employees until June 2, 2005. Neither she nor her
husband notified the Minister of her purported resignation. Even if this
resignation had occurred on the date alleged, the appellant would nonetheless
have remained a de facto director. The resignation could not have
been set up against the Minister, who was unaware of it until the notice of
objection. However, on the basis of the evidence in the instant case, it is my
opinion that the resignation did not take place on March 22, 2002.
[59]
According
to the case law, a person cannot have ceased being a director if he acted as a de
facto director during the period in question. This rule is so fundamental that it can
negate all the effects and benefits of a proper resignation.
[60]
This is obviously a
clear provision that is very easy to understand. The resignation must be
genuine, and the evidence of its genuineness must be decisive, reliable and
credible.
Care, diligence and skill
[61]
In addition
to providing a limitation defence, the ETA enables appellants to argue in their
defence that they acted as a prudent and diligent director (subsection 323(3) of the ETA). In
the case at bar, the appellant essentially raised the limitation issue; he did
not submit any evidence in connection with the defence of care, diligence and skill.
[62]
Consequently, there is
no reason to assess the evidence from this perspective.
[63]
It appears
that the appellant in the case at bar even used the tax collected as a
mandatary to pay the company's debts.
[64]
It must be borne in
mind that the appellant bears the onus of proof. In order to discharge this
onus, the appellant chose to testify and to call the notary who allegedly
prepared the text of the resignation from all three companies as a witness.
[65]
His testimony was characterized
by discomfort, and, more importantly, by glaring contradictions for which no
reasonable or even credible explanations were provided.
[66]
The notary even
admitted his responsibility for an undue delay in filing a very important
document, namely, the amending declaration dated April 1, 2006, but sent in
October, November or perhaps even December 2006. As for the appellant, he
stated that it was sent on November 16, even though the stamp on the document
says January 9, 2007. The notary said that the delay was due to the non-payment
of his fees.
[67]
Since the stamp affixed
by the enterprise registrar bears the received date of January 9, 2007, the
notary stated that he might have sent out everything in November but was unable
to provide a clear date, even though the payment of his fees is quite possibly
a helpful reference point.
[68]
The proof, which was up
to the appellant to make, consisted in the testimony of two non credible
witnesses, testimony that was full of holes, confusing, and contradicted by
documents. The quality of both witnesses' testimony was discredited by the
following elements, among others:
a.
the notary's obvious
discomfort;
b.
contradictions between
the assertions and the contents of several documents;
c.
the absence of highly
material witnesses;
d.
the fact that resignations
of April 1, 2006, were never raised before the objection was filed;
e.
the fact that the
resignations were never raised at meetings with the collections officer;
f.
the admission of a de
facto directorship in relation to managerial acts during a period
subsequent to April 1, 2006;
g.
the appellant and
notary's selective memory;
h.
the notary's outlandish
explanation for the delay in submitting an amending declaration that was very
important and above all very consequential; and
i.
the appellant's
self-serving testimony.
[69]
Proof of a resignation
that forms the basis for contesting an assessment needs to be consistent,
plausible and, especially, credible. In the case at bar, three resignations
were supposedly signed on the same date for three different companies.
[70]
Assuming that the dates
of the signatures on the resignations were true, the appellant knew, and should
have known, that he, or someone else, would have to intervene often in order to
carry out very important duties. Thus, reasonable and, above all, plausible,
explanations, needed to be provided. Companies that carry out transactions
worth millions of dollars must be able to survive the resignation of their
directors.
[71]
I am referring, among
other things, to the numerous notarial deeds, the signing of numerous cheques
for substantial amounts, and all the paperwork that the management and
administration of such companies required. For a business involved in the
construction of condominiums, the payment of the various stakeholders' accounts
and the sale of condominiums are hardly unimportant, secondary or insignificant
duties; rather, they are juridical acts that lie at the very core of the
business's activities and are closely tied to management and to fundamental
operations directly related to the vocation of the businesses in question.
[72]
The evidence disclosed
no concrete actions validating the appellant's claim. Moreover, no witnesses
gave testimony to confirm the supposed resignation. How can one explain
the fact that an experienced businessman who manages millions of dollars was so
inconsistent on a fundamental issue, namely, a resignation that was followed by
continued conduct suggesting that the resignation never took place?
[73]
The answer is very
simple. This was essentially a resignation of convenience or accommodation, the
stated date of which is neither credible nor validated by reliable and decisive
evidence: the two witnesses who attested to the resignations are not credible,
and decisive documentary evidence totally discredits the nature of the
resignations supposedly tendered on April 1, 2006.
[74]
It is undoubtedly a
retroactive date intended to get out of his obligations. In fact, the
appellant admitted through his counsel that the resignation did not have any
effect with regard to certain actions. In a sense, he argued that the
resignations were proper and legally valid for certain periods but not for
others. A resignation is not a carte blanche that allows the person who has
supposedly resigned to use it when his various choices make it necessary. A
resignation is a juridical act that must meet requirements for its existence, its
conformity and its effects as against third parties.
[75]
The appellant's
evidence in support of the three appeals essentially rests on his testimony and
that of the notary. I believe absolutely nothing they said. Moreover, no one
else testified in support of the incomplete, patched-together evidence. It was
important to show that the facts were consistent with the resignations. It would
have been interesting to hear the bank manager, the customers, the
subcontractors, etc.
[76]
I must dispose of
appeals based on the available evidence. And the evidence, which the appellant
was responsible for providing, does not support these appeals, because the
facts show that he continued to act de facto after April 1, 2006, the
alleged date of the resignations. Moreover, the evidence as to the April 1 date
is not a reliable and credible foundation. Rather, the evidence shows that the
document was drawn up much later in order to avoid the tax liability. How else
to explain the fact that the appellant, who had the advice of a tax specialist,
did not bring the appellant's April 1, 2006 resignation to the respondent's attention?
He did so upon the objection to the assessment, which came much later.
[77]
For all these reasons,
the appeals are dismissed, with one set of costs to the respondent.
Signed at Ottawa,
Canada, this 19th day of October 2011.
"Alain Tardif"
Translation certified true
On this 22nd day of November 2011
Monica F. Chamberlain, Reviser
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