[9] The judge erred in concluding that the respondents resigned as directors. In the absence of the communication of a written resignation to the corporation, a resignation is not effective. On the facts before the judge, the respondents did not resign in 2001.
[17] In finding that Mrs. Chriss exercised due diligence, the judge committed an error on an extricable question of law. A director may be able to rely on a reasonable belief in having resigned to ground a due diligence defence, but the standard must be much higher than the one applied by the judge in this case.
[18] The scope of the due diligence defence is informed by the nature or subject matter of the director’s responsibility in question. Here, the question in respect of which due diligence is raised is fundamental to corporate governance – am I or am I not a director? There can be no ambiguity in the answer to that question.
For the reversed TCC decision, see: Gariepy v. The Queen, 2014 TCC (Boyle) — an unsigned director’s resignation can start the 2-year limit on liability