Qian v. The Queen[1] (December 5, 2013) is a case involving a poorly paid immigrant who was essentially forced to be a director and shareholder of a corporation (Goldstaff) as a condition of getting a job. The court accepted her evidence that she did all within her power to see that corporate remittances were kept up to date but management basically ignored her warnings:
[18] In this case, I consider that the appellant took all the necessary measures within her power and under the circumstances, to prevent the failure. She did the best that anyone could reasonably have done in the circumstances to convince Ms. Stafford to make the remittances, and she quit when she realized that Ms. Stafford would simply never agree and given the policies and practices in place at Goldstaff.
[19] Considering the fact that the appellant did not have the necessary authority to herself make the payments to the CRA, she alerted the other directors, of Goldstaff’s liabilities on a daily basis and to the remittance requirements as they became due. The appellant enlisted the help of Ms. Shewchuk, who operated the Edmonton office, to address the company’s financial situation. She suggested numerous methods to reduce Goldstaff’s liabilities, including a wage cut for herself, by terminating the receptionist and by cutting Ms. Stafford’s RRSP contribution and car allowance.
[20] As director of Goldstaff, the appellant had no authority, no input as to the direction of Goldstaff and how the finances should be handled. The appellant neither participated in the decision not to remit to the Receiver General of Canada the amount of the source deductions nor in the decision to pay a bonus to certain Goldstaff’s employees at the end of 2008 even though the company was not profitable. She became aware of the bonus only after it had been paid.
[21] During the appellant’s tenure as director of Goldstaff, she did not have any power to manage the business and affairs of Goldstaff or exercise control over its officers. That power was exercised by Ms. Stafford. The appellant never signed any documents as a director and never sat at a board of directors meeting. She did not have the authority to sign cheques drawn on Goldstaff’s bank accounts.
[22] Concerning the particular circumstances of the appellant, consideration shall be given to the fact that the appellant had cultural and language barriers. At the hearing, the appellant explained that she was not invited to participate at the various telephone conversations that were taking place between Ms. Stafford and Ms. Shewchuk. As those telephone conversations were behind closed doors, the appellant respected the privacy of these matters. The appellant admitted that she would have had difficulties following discussions as her English was not good at that time.
[23] The appellant was, in 2008, a recent immigrant to Canada who had had to obtain new training to make a significant career change upon moving to Canada. Mr. Goldsmith and Ms. Stafford took advantage of the appellant’s lack of knowledge of Canadian rules concerning potential liability of the company’s directors. Ms. Stafford took full advantage of the appellant’s vulnerable position and of her naivety.
[24] At the hearing, the appellant pointed out that Ms. Stafford was not assessed by the CRA because she had declared bankruptcy.
[25] For these reasons, the appeal is allowed with costs and the assessment is vacated.
[1] 2013 TCC 386.