19 December 2008 Internal T.I. 2008-0295631I7 - Directors' Liability

Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the CRA.
Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle de l'ARC.

Principal Issues: Whether directors of a non-profit corporation are liable for source deductions.

Position: Yes.

Reasons: "Corporation" in s. 227.1 of the Act is unrestricted and unqualified; therefore, it covers all types of corporations.

 								December 19, 2008

	CALGARY TSO 					HEADQUARTERS
	Revenue Collections Division			Income Tax Rulings
		   Directorate
	Attention: Brenda Bauer				Lindsay Frank
		 Assistant Director 			613-948-2227

								2008-029563

Liability of Directors of a Not-For-Profit Corporation

This is in reply to Angela McAvity's email, wherein she asked for our comments concerning the above-referenced matter. She has a file where she intends to assess the directors of a not-for-profit corporation for its failure to remit trust funds. The directors have retained legal counsel, who is of the view that directors' liability does not apply to directors of a not-for-profit corporation. As explained below, directors of a corporation are liable, notwithstanding that the corporation is not-for profit.

Whether a director of a not-for-profit corporation is liable for the above-referenced amounts was the issue in Wheeliker v. R., [1998] 1 C.T.C. 2021 (T.C.C.); rev'd in [1999] 2 C.T.C. 395 (F.C.A.), and in Rancourt v. R., [2008] G.S.T.C. 120 (T.C.C.). In both decisions, the courts made it clear that a director cannot escape liability by virtue of the nature of the corporation.

In Wheeliker, the Court held that directors of a not-for-profit corporation were liable. In reaching its decision, the Court examined the object of the legislation, and concluded that it was to make the directors of a corporation ultimately accountable for the remittance of the above-mentioned amounts, and that such accountability could not depend on whether the corporation was a for-profit or a not-for-profit corporation. The Court also stated that the word "directors" was unrestricted and unqualified, and by using the word in that vein, Parliament intended it to cover all types of directors, and it follows, all types of directors.

In Rancourt, the Court echoed similar remarks, in stating that the applicable standard of care, the so-called due diligence defence, was no different whether it was applied in the case of a director of a non-profit organisation or in the case of a director of a business corporation.

Trusting you find this satisfactory

B. J. Skulski
Manager
Insolvency and Administrative Law Section
Business and Partnerships Division
Income Tax Rulings Directorate

c.c. Angela McAvity