Audit, Compliance and Risk Blog

Appeal Court Rejects Intention to Resign Reasoning in Directors’ Tax Liability

Posted by Ron Davis on Tue, Feb 07, 2017

The Federal Court of Appeal granted the Crown’s appeal from a Tax Court decision excusing two directors from liability for unremitted income tax deductions because there was evidence of their subjective intention to resign as directors (Gariepy v. Canada, 2016 FCA 236). Donna Elizabeth Gariepy and Sally Anne Chriss were directors of 1056922 Ontario Ltd. (“105”), a company whose affairs and business was managed by their respective spouses. The spouses had previously operated another company that had become insolvent and owed significant amounts to the Canada Revenue Agency. The spouses were aware that they could be liable as directors of the previous company for a two year period and prevailed on Gariepy and Chriss to become 105’s directors for those two years, despite their lack of involvement in the previous company and their reluctance to act as directors.

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Tags: Business & Legal, Canadian, directors, directors & officers

Corporation’s Failure to Bid on Project Does Not Excuse Director

Posted by Ron Davis on Wed, Dec 21, 2016

A recent appeal before the Manitoba Court of Appeal highlights the strictures placed on directors with respect to corporate opportunities. In Matic v. Waldner (2016 MBCA 60), the dispute concerned the opportunity to bid on a construction project for one of Manitoba’s First Nations. Ante Matic (Matic) and Paul Waldner (Waldner) agreed to purchase Springhill Lumber Wholesale Ltd. (Springhill) from its previous owners, with Waldner having a 70% interest, and Matic having a 30% interest and acting as Springhill’s general manager. Springhill’s main customers were First Nations, primarily in northern Manitoba. In addition to supplying construction material, Springhill would sometimes also act as general contractor for construction projects for the First Nations.

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Tags: Canadian, directors & officers

Ontario Court Rejects Employee’s Claim That Director Owed Duty of Care to Employee

Posted by Ron Davis on Thu, Oct 27, 2016

The Ontario Psychological Association is a not-for-profit voluntary association that aims to advance the practice and science of psychology through advocacy and education. Charlotte (Carla) Mardonet was hired by the Association in 1990 to manage its affairs and administer its finances and money. In Ontario Psychological Assn. v. Mardonet (2016 ONSC 4528 (Ont. S.C.J.)), the Court granted the Association’s motion to strike the part of Mardonet’s counterclaim alleging that the Association and its officers and directors owed Mardonet a “duty of care and a fiduciary duty which they breached as a result of their failure to provide her with the supervision, management, support and guidance that was part of their responsibility” and claiming full indemnity and contribution from the directors for any amounts that Mardonet might be liable to the plaintiff. The defendant’s counterclaim was issued in response to the plaintiffs’ lawsuit alleging the defendant had “misappropriated the funds [$1.6 million] and converted them to her own benefit and the benefit of her family members and friends,” with the assistance of her immediate family.

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Tags: Employer Best Practices, Employee Rights, Canadian, directors, directors & officers

EEOC Issues New Enforcement Guidance on Retaliation

Posted by Jon Elliott on Tue, Oct 04, 2016

The Equal Employment Opportunity Commission (EEOC) administers and enforces most national anti-discrimination laws. As part of these responsibilities, EEOC issues formal regulations, and a host of less formal guidance documents – some directed to employers, some to employees, and/or some to the agency’s own personnel. In August 2016, EEOC reissued EEOC Enforcement Guidance on Retaliation and Related Issues (“the Guidance”), describing its approach to situations where employees claim they’ve suffered retaliation for asserting rights against discrimination under the laws EEOC administers, or even just for questioning workplace rules and situations.

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Tags: Employer Best Practices, Employee Rights, EEOC, directors, directors & officers

New Rules For Labor Law Compliance By Federal Contractors

Posted by Jon Elliott on Thu, Sep 22, 2016

In July 2014, President Obama issued Executive Order (EO) Number 13673, establishing a series of reporting and procedural requirements for federal contractors, inducing them to provide “Fair Pay and Safe Workplaces” to their employees. Some requirements are specific in the EO, while others were left for clarification by revisions to the Federal Acquisition Regulation (FAR), for contracts subject to these requirements. (I blogged about the EO here). None became effective in 2014, but instead they have awaited the FAR revisions. The revised FAR has been issued effective October 25, 2016, for appropriate contracts issued by the Department of Defense (DoD), General Services Administration (GSA) and National Aeronautics and Space Administration (NASA). The new requirements will be phased in, covering contracts and subcontracts for goods and services greater than $50 million immediately, and those greater than $500,000 effective April 25, 2017.

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Tags: Employer Best Practices, OSHA, Employee Rights, EEOC, directors & officers

SEC Tries Again To Increase Resource Extraction Issuers’ Reporting

Posted by Jon Elliott on Tue, Jul 26, 2016

The Securities and Exchange Commission (SEC) has recently republished requirements for publicly listed “resource extraction issuers” to report payments they make to the U.S. federal government or foreign governments, related to commercial development of oil, natural gas, or minerals. These requirements fulfill one of many duties assigned SEC by the 2010 Dodd-Frank Act, this one codified in a new Section 13(q) of the Securities and Exchange Act of 1934 (1934 Act).

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Tags: SEC, Environmental, Oil & Gas, directors, directors & officers

Constructive Dismissal Claims Due to Employer Conduct

Posted by STP Editorial Team on Thu, Jul 21, 2016

Managers who abuse employees and employers who tolerate such abuse may be subject to law suits and face significant financial penalties if their actions are found to constitute constructive dismissal.

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Tags: Employer Best Practices, Employee Rights, Canadian, directors, directors & officers

Director Who Decided Not To Be Involved In Business, Still Liable For Employees’ Unpaid Wages

Posted by Ron Davis on Tue, Jul 19, 2016

Mensa Williams was listed as a director in the incorporation documents for Ambrosia Elite Corp., a company run by his brother, Admin. Ambrosia was incorporated in 2007, but did not actively conduct its retail clothing business until 2008. Ambrosia became insolvent in 2014, leaving its employees with unpaid wage claims. The unpaid wage claims were pursued under Ontario’s Employment Standards Act, 2000 (ESA), and when those claims were unsatisfied, an order to pay was issued to Ambrosia’s directors including Mensa Williams.

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Tags: Business & Legal, Employer Best Practices, Employee Rights, directors, directors & officers

Director’s Liability Insurance Does Not Cover Personal Guarantee Given By Director

Posted by Ron Davis on Thu, Jul 14, 2016

In Great American Insurance Co. v. Ramsoondar (2016 ABQB 73), the Alberta Court of Queen’s Bench was asked to declare that a director and officer liability insurance policy did not cover the losses claimed against Fredy v. Ramsoondar pursuant to a personal guarantee he granted to Faunus Group Inc. (FGI), a client of United Protection Services Inc. (UPSI). UPSI was a wholly owned subsidiary of United Protection Services Group Inc. (UPSG), and UPSG obtained a director and officer liability policy from Great American Insurance Co., and listed Ramsoondar as its chief financial officer on the policy.

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Tags: Insurance, Insurance Claims, Canadian, directors, directors & officers

Oil Companies Must Let Shareholders Vote To Expand Reporting Relevant To Climate Change

Posted by Jon Elliott on Thu, Apr 14, 2016

In recent years, activist investors have sought to expand climate-related reporting by publicly traded companies – directly by pressuring the companies, and indirectly by petitioning the U.S. Securities and Exchange Commission (SEC) and other regulators to require additional reporting in periodic reports on the businesses’ status and prospects, and in annual meeting reports and proxy requests. SEC has been criticized for doing very little in response to these requests, but took potentially important actions on March 23.

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Tags: SEC, EHS, Oil & Gas, directors, directors & officers