You are a director of a private corporation, and one of the
shareholders has asked you to provide him with the minutes of the
last meeting of the board of directors. Are you legally obliged to
provide this document to him?
A. The statutory provisions
First of all, the Canada Business Corporations
Act1 (the "CBCA") provides that
minutes of board meetings may be examined only by the directors of
the corporation. The same is true of Quebec's Business
Corporations Act2 (the "QBCA") which
states that only the directors and the auditor of the corporation
may have access to the records containing the minutes of meetings
of the board and its committees and copies of the resolutions
passed by the directors. In addition, the minutes of board meetings
are not among the documents that may be examined by the
corporation's shareholders under both the CBCA and the
QBCA3. As for not-for-profit organizations governed by
Part III of the Companies Act4, the minutes of
board meetings are also not among the records that the
organization's members may have access to.
B. Confidentiality of minutes
Quebec courts have already considered this issue. In its
decision in Germain v. L.D.G.
Inc.5 the Court of Appeal stated that the
minutes of directors' meetings are part of the company's
administrative and operational books and records. The Court
specified that such documents are related to the internal
administration of the company and are for the use of the directors
in office. The Court was thus of the view that access to such books
and records is limited to the currently serving directors.
In its decision in Roch Harnois & associés
Inc.6, a bankruptcy matter, the Superior Court
arrived at the same conclusion as the Court of Appeal: a
shareholder has no right to examine the minutes of board meetings
or the resolutions adopted by the directors. And as the
trustee-in-bankruptcy has no more rights than the bankrupt does,
the trustee is not entitled to have access to those documents.
In another Superior Court decision7, a member of a
not-for-profit organization sought a declaratory judgment to the
effect that he was entitled to have access to the minutes of the
meetings of the organization's board of directors.
Notwithstanding the principles enunciated by the Court of Appeal
and the Superior Court in the two decisions canvassed above, the
Court in this case held that in exceptional cases where an
organization is being sued, a court may compel the disclosure of
the minutes if they are central to the resolution of the dispute.
However, the Court decided that the instant matter was not one of
those exceptional cases.
It should be pointed out however that there are exceptions under
both the CBCA8 and the QBCA9 with
respect to corporate business in which a director has a personal
interest. In such cases, a shareholder of the corporation may
examine the portions of any minutes of meetings of directors or
committees of directors that contain disclosures about a
director's interest in a contract or transaction to which the
corporation is a party, as well as any other documents containing
C. Admissibility of minutes at trial
While generally only the corporation's directors can examine
the minutes of board meetings, this does not mean that such
documents must be considered confidential10. As the
Court pointed out in Payette v.
Viel11, in specific cases where the corporation
is being sued, the Court may order the filing of board minutes into
evidence. By way of example, in the matter of M.L. v.
Compagnie A12, Quebec's access to information
commission ordered the company to disclose to the plaintiff
portions of the minutes of meetings of its board that contained
personal information concerning the plaintiff.
It is thus evident from the applicable statutory provisions and
the case law that, subject to certain exceptions involving a
director's personal interest, a shareholder of a corporation is
generally not entitled to have access to the minutes of meetings of
its board of directors. However, in certain situations, the courts
may order that portions of the minutes be provided to the
1 RSC 1985, c. C-44, s. 20 (4)
2 CQLR, c. S-31.1, s. 34
3 Supra, note 1, ss. 20 (1) and 21 (1) and note 2, ss. 104 and
4 CQLR, c. C-38, ss. 104 and 105
5 Germain v. L.D.G. Inc.,  J.Q. no.
6 Roch Harnois & associés Inc. (Syndic de),
AZ 98021181 (S.C.)
7 Payette v. Viel, 2013 QCCS 2764
8 Supra, note 1, s. 120 (6.1)
9 Supra, note 2, s. 130
10 Desjardins v. Domtar Inc. J.E. 96-2150
11 Supra, note 6
12 2010 QCCAI 73
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Under the Income Tax Act, the Employment Insurance Act, and the Excise Tax Act, a director of a corporation is jointly and severally liable for a corporation's failure to deduct and remit source deductions or GST.
Under the Income Tax Act, the Employment Insurance Act, the Canada Pension Plan Act and the Excise Tax Act, a director of a corporation is jointly and severally liable for a corporation's failure to deduct and remit source deductions.
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