Directors & Officers Liability

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OVERVIEW

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 D&O Liability Group understands these dynamics.

SERVICES

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 and 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 can provide comprehensive advice and representation across a wide range of complex coverage matters, 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

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FIRM CASES

Allegations are Subject to Higher Scrutiny When Made Against Personal Defendants

PUBLICATIONS

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Mb publications thmb original Causation And Standard Of Proof For A Hypothetical Pre-Trial Loss

First Published in Advocates Quarterly. This paper addresses whether the same principles regarding the “real and substantial possibility” standard of proof apply to a hypothetical past loss claim as they do to a hypothetical future loss claim, and the interplay between the two standards of proof applicable to hypothetical claims: balance of probabilities for the “but for” causation test, and “real and substantial possibility” for damages.

A privacy thumb original Not-for-profits ~ BEWARE: Federal privacy laws can apply to not-for-profit corporations

The Personal Information Protection and Electronic Documents Act (PIPEDA) can apply to not-for-profits. PIPEDA applies to organizations that collect, use or disclose personal information in the course of commercial activities. While commercial activities may seem to be a blanket statement indicating that PIPEDA applies only to for-profit corporations, the relevant authorities suggest otherwise.

A costs rules original Improperly sued? Can you recover costs if the action is dismissed? Rule 23.05

In order to protect limitation periods, especially in cases where liability is yet to be determined, there is an obligation on counsel to identify, name, and pursue all parties who may be liable to the plaintiff(s). However, as the discovery process begins, parties often become aware that they have added in a party that will bear no liability to the plaintiff(s). Often, parties are able to consent to a dismissal or discontinuance without costs; however, there are cases in which defendant(s) will not go out without costs. In these cases, parties can move for a ruling under Rule 23.05...