CRA will often rely on the public registry to decide if someone is a director liable for a corporation’s HST or payroll amounts.
“[33] The public registry of directors could lead to a presumption that one is a director but this presumption may be overcome provided there is evidence the person never consented to be a director.
“[34] The Tax Court of Canada has previously held that a person who was never made aware that they were a director, and did not consent to be a director, is not a de jure director.
“[37] Based on the evidence it is clear that the Appellant had not consented to be a director. The Appellant did not know he was a director until 2010, he did not execute the appropriate documentation to be a director, and proper steps were not taken by the corporation to appoint the Appellant as a director. Under the Business Corporations Act of New Brunswick, the Appellant therefore could not have been and was not a de jure director.
“[38] In Wheeliker v. R., [1999] 2 C.T.C. 395, … the Federal Court of Appeal held that the liability for a corporation’s failure to remit taxes can be imposed on individuals who act as directors, even without a valid appointment.
“[39] The concept of de facto director however should be limited to those who hold themselves out as directors.
“[41] In Perricelli v. R., 2002 G.T.C. 244, Justice Miller notes that the determining factor in concluding that a person could not be considered a de facto director was that the person “did not believe he is a director and he never thought he had any authority to advise, influence or control, the management or direction of the company”.”
Despite his having signed various documents showing him to be a director and having taken steps that directors might take, Rossiter ACJ felt the appellant was not a de facto director or a de jure director. So, he was not liable for the corporation’s tax debts.