Directors and Officers Liability

Standards for corporate governance and the related liabilities of directors and officers are complex areas of law that are growing apace of the financial scandals within multi-national corporations that are reported daily in the business news media. Regardless of whether corporate indemnification obligations exist, D&O liability insurance is frequently the main recourse.

Simple competition amongst insurers influences the basic availability of such coverage, as well as its terms and cost. However, the driving factor is the insurance industry's perception of the risk itself, as fuelled by this highly-charged media environment.

Our group provides:

Litigation involving Directors & Officers

Members of our D&O Liability Group are able to advise and represent directors and officers and their corporations in many areas of dispute, including:

• corporate governance and compliance, and the performance of related duties
• the defence of directors and officers in the context of litigation, arbitration, and mediation arising from alleged negligence or fraudulent misrepresentation and disclosure, oppression and derivative proceedings, deceptive market practices, violation of securities laws, and other statutory or common law rights of action
• proactive protection of the rights of directors and officers within and outside of their corporations

D&O Insurance & Risk Management

Our D&O Liability Group has a wealth of experience in dealing with insurers, insureds, and brokers in connection with D&O liability insurance products. We are able to provide comprehensive advice and representation across a wide range of complex coveragematters, including:

• opinions on specific insurance coverages in the circumstances of specific claims
• proactive monitoring of underlying D&O or entity claims to protect the interests of insurers
• assessments of coverage entitlements and exposure arising from statutory or by-law indemnification/reimbursement duties, entity obligations, and the more specific coverage issues associated with non-disclosure and misrepresentation, retentions, defence association, allocation, "entity versus insured", personal profit, severability, securities claims, outside/inside directors claims, employment practices, and many other matters
• acting on coverage disputes under direct retainers or in conjunction with foreign and national coordinating counsel
• explaining the nuances of various available D&O insurance products as they bear on the many and evolving exposures faced by directors and officers
• drafting new policies or modifying existing policy wordings and endorsements to fit the Canadian marketplace

Publications

• Changes to Legislation: The Non-Profit Corporations Act, 2022 , McDougall Gauley LLP, April 11, 2023
• New Business Corporations Act Enacted March 12, 2023 , McDougall Gauley LLP, April 10, 2023
• Not-for-profits ~ BEWARE: Federal privacy laws can apply to not-for-profit corporations , McCague Borlack LLP, April 18, 2022
• Improperly sued? Can you recover costs if the action is dismissed? Rule 23.05 , McCague Borlack LLP, February 03, 2022
• Allegations are Subject to Higher Scrutiny When Made Against Personal Defendants - Featured Case Study: Matlock v. Ottawa-Carleton Standard Condominium Corporation , February 09, 2021
• Disengaging Assets subject to a CCAA Proceeding - Case Study: Teliphone Corp. v. Ernst & Young Inc. , January 18, 2021
• Enforceability of Settlements in the Context of Self-Represented Plaintiffs - Case Study: Huma v. Mississauga Hospital , November 24, 2020
• Electronic Signatures: Is Your Municipality Ready to Embrace A New Approach? , Brownlee LLP, October 21, 2020
• Jury Questions: When to Ask for Reasons - Case Study: Cheung v. Samra 2020 ONSC 4904 , September 26, 2020
• The Court exercises its "Fact Finding Powers" - Case Study: Carmichael v. GSK Inc. , September 26, 2020
• Ontario Courts updating online infrastructures to accommodate COVID-19 needs for safety , August 11, 2020
• Updates around Civil Matters in the Superior Court of Justice in the Central East Region , August 10, 2020
• A Plea for Simple Pleadings , McCague Borlack LLP, May 31, 2020
• Directors' and Officers' Liability in the Age of COVID-19 , McCague Borlack LLP, April 21, 2020
• COVID-19: Taking stock of urgent motions , McCague Borlack LLP, April 15, 2020
• COVID-19: Business interruption – Are you covered? , McCague Borlack LLP, April 14, 2020
• Beware of Presumption of Management or Control of a Director - Case Comment: Alizadeh v Ontario , January 30, 2020
• Amendments To The CBCA Effective June 13, 2019 , June 12, 2019
• To Warn or Not To Warn: An Explanation of the Duty to Warn and the Reasonable Foreseeability Analysis: Case Comment: Maxrelco (Immeubles) v Lumipro Inc. , June 29, 2018
• Common Interest Privilege: A New Tool in the Litigation Basket , May 25, 2018
• Insurer's Duty of Good Faith will not be expanded by Supreme Court Case Comment: Usanovic v. Penncorp , First Published to MB's Client List, January 09, 2018
• The Supreme Court of Canada keeps the onus on banks over innocent drawers for fraudulent bills of exchange , November 02, 2017
• The Oppression Remedy: Greater Risk of Personal Liability for Directors and Officers , July 26, 2017
• When are municipalities granted immunity in a civil action? Case Study: Keyland Development Corporation v Rocky View , February 08, 2017
• Deference to Reasonable Decision made by Condo Boards , January 20, 2017
• Duties and Liabilities of Directors and Officers , First presented at a Client D & O Seminar, October 05, 2016
• Primer on Director and Officer Liability Insurance , First presented at a Client D & O Seminar, October 03, 2016
• Lights, camera, financial transaction , MB Client Newsletter, January 26, 2016
• Ontario Court of Appeal releases decision in expert evidence case , MB Newsletter, January 29, 2015
• Effective Claims Management: The role of the crisis communication strategy , First presented at an MB Seminar - Effective Claims Management, November 01, 2011