Highlights of Noteworthy Decisions

Decision 1221 14
14/07/2014
B. Kalvin
  • Executive officers
  • Board Directives and Guidelines (executive officers)

The employer was a family-owned construction company. The husband took over sole operation of the business from his stepfather. In the mid-1980s, the husband's wife became involved in the business. The employer appealed a decision of the Appeals Resolution Officer finding that the wife was a worker of the company and not an executive officer.

The Board conducted an audit in 2007 relating to the years 2005 and 2006. The wife had not been listed as an officer of the corporation. After the Board found that the wife was a worker, the company passed a resolution in 2008, appointing the wife as treasurer of the corporation retroactive to the date of incorporation in 2003. The Vice-Chair did not accept the retroactive appointment of the wife as an executive officer when it was made in response to the ruling of the Board that the wife was not an executive officer. The Vice-Chair noted that this was not a regular updating of the firm records that would have occurred regardless of the Board's adverse ruling. Rather, it was carried out solely, or at least primarily, for the purpose of circumventing the adverse ruling of the Board.
The Vice-Chair agreed with previous Tribunal decisions that, even if a person is not listed as an executive officer in the corporate minute book, determination of status as an executive officer may still be determined based on the relevant facts of the case.
In this case, the husband and wife ran the company as equal principals. The wife had authority to act independently. She had signing authority which she could exercise independently of her husband. The Vice-Chair found that the wife was one of the two directing minds of the corporation and not simply a worker.
The Vice-Chair concluded that the wife was an executive officer. The appeal was allowed.