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A director’s resignation does not have to be signed in order to be effective under the Ontario Business Corporations Act. There must be evidence that the corporation received a written resignation confirming that the director has resigned

Ontario

,

Canada

Requirements for an effective director’s resignation In Cliff v. Canada, 2022 FCA 16, the sole question before the Tax Court was whether the appellant, Robin Cliff, resigned as a director of Cliff Crucibles Inc. (the “Company”) more than two years before she was assessed by the Minister of National Revenue under the Excise Tax Act, R.S.C., 1985, c. E-15 (the “ETA”) and the Income Tax Act, R.S.C., 1985, c. 1 (5th Supp.) (the “ITA”).In 2001, the appellant’s husband incorporated the Company under the Ontario Business Corporations Act, R.S.O. 1990, c. B.16 (the “OBCA”). The appellant and her husband signed documents appointing themselves as the corporation’s directors. In 2013, the Company was dissolved with tax liabilities outstanding under both the ETA and ITA. The Minister of National Revenue assessed the appellant and her husband as directors for the unremitted tax under both statutes. The appellant filed a notice of objection and subsequently notices of appeal to the Tax Court. The appellant contested that she was only willing to be a director on a temporary basis and had told her husband that she wanted to be removed as director immediately following her appointment. The appellant argued before the Tax Court that this statement constituted her resignation. In addition, at the request of the appellant, the husband had directed his accountant to remove the appellant as director. The account prepared a Form 1 to remove her. The form, unsigned, was added to the Company’s minute book and supposedly sent to the Ontario Ministry of Consumer and Commercial Relations, but no record of the form could be found in the Ministry records. The appellant, her husband, and his accountant testified that the Company had never received a written resignation. Tax Court Decision The sole issue before the Tax Court was whether the appellant had resigned as a director of the Company in accordance with subsection 121(2) of the OBCA more than two years prior to the date on which she was assessed. Subsection 121(2) states:(2) A resignation of a director becomes effective at the time a written resignation is received by the corporation or at the time specified in the resignation, whichever is laterThe judge held, based on his interpretation of Canada v. Chriss, 2016 FCA 236 (“Chriss”) that a director’s resignation required a personal signature of the director to be effective. Since Form 1 had no signature, he ruled that the appellant remained a director. Appeal Rennie J.A., Gautier J.A., and Webb J.A. concurring concluded that the Tax Court judge had erred in finding that a signature was required for the resignation to be effective. Chriss did not stand for such a broad proposition. In Chriss, the director had purported to resign by letter, but the letter presented by the corporation was unsigned and undated. The correct ratio of Chriss was that where a director decides to communicate his resignation by letter signed by the director, it must be signed by the director. Rennie J.A. explained that a director could resign by email or text and emphasized that “whatever factual circumstances arise, there can be no ambiguity regarding whether a written resignation has been received by the corporation, and there must be certainty as to the effective date” (para 11).However, Rennie J.A. stated that the judge’s error was inconsequential. Rennie J.A. disagreed with the appellant’s argument that s.121(2) only required that a corporation have written evidence of a resignation, rather than stipulating that the act of resignation itself must be expressed in writing. This argument was inconsistent with the language of s.121(2) (para 11-13).Rennie J.A. stated that Form 1 is not a resignation to the corporation, it is a communication from the corporation to the government. Form 1 did not indicate when it was completed and there was no director’s signature. For a resignation to be effective, there had to be evidence that the Company had received a written resignation. Form 1 was no substitute for a written resignation (para 15). The appeal was dismissed.

April 14, 2022
Cliff v. Canada, 2022 FCA 16