D&O Liability: What Are You Liable For?

March 1, 2023
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Corporate directors must act in an ethical manner and prioritize the company’s best interests over their own personal interests. They must be knowledgeable and informed of the company’s operations, ensure that adequate policies and procedures are in place to safeguard the corporation, and ensure that the organization complies with applicable laws and regulations. Furthermore, they must ensure that the organization is financially sound and that its financial and non-financial resources are managed in a prudent manner. They must also ensure that the organization is transparent, accountable, and compliant to its stakeholders.

Decisions made by directors that sit on a board, whether for a for-profit or non-profit organization, will have a significant impact on stakeholders such as volunteers, employees, customers and clients, shareholders, competitors, and the government. These decisions can affect the goals, objectives, and strategies of the organization, the quality of services and products, and the public image of the organization. They can also impact the financial health of the organization, the relationships between the organization and other businesses, and the regulatory environment in which the organization operates. Ultimately, the decisions made by directors can have a lasting effect on the organization’s success or failure, which exposes them to heightened risk and liability.

Directors and officers (D&O) liability insurance provides financial protection to individuals acting as directors or officers of an organization. It covers any legal action taken against them by stakeholders or other parties due to their management of the organization. This type of insurance policy protects the personal assets of directors and officers, their spouses, domestic partners, or estates in the case of legal action. It helps to cover the costs of legal fees, settlements, or judgments that result from any claims or lawsuits, enabling the directors and officers to focus on running the organization without fear of being held personally liable for any losses or damages incurred.

Wrongful acts can range from claims of mismanagement of funds or fiduciary responsibilities (such as when a company misuses money or fails to act in the best interests of its shareholders or creditors), to misrepresentations made to shareholders, creditors, or other parties, to violations of federal or provincial laws and regulations related to workplace safety, employment practices, and environmental practices. In some cases, wrongful acts can even include criminal activities such as fraud or embezzlement. Any unlawful acts are serious offences that can result in civil or criminal penalties and may carry significant financial and/or reputational consequences.

An organization governed by a board of directors, from non-profit organizations to commercial enterprises, requires comprehensive Directors and Officers (D&O) insurance coverage. This type of policy ensures the individuals who serve on the board of directors are protected against the potential financial losses they may incur due to being held accountable for their actions or inactions. D&O insurance offers liability protection for directors and officers when they are sued for alleged wrongful acts or omissions in their capacity as board members.

Who qualifies as a director?

A director is a person or group of people responsible for managing the operations and activities of a company or organization. They are generally appointed by the shareholders or board of trustees and are responsible for setting the overall direction and vision of the organization.

Duties of a director or officer

Directors and officers must exercise due diligence in overseeing the management of the organization they serve. This involves three basic duties:

  1. Duty of Diligence (Duty of Care): Act reasonably, in good faith, and in the organization’s best interest.
  2. Duty of Loyalty: Place the interest of the organization before your own.
  3. Duty of Obedience: Act within the scope of applicable bylaws.

Do I need D&O coverage?

Directors and Officers (D&O) Liability claims can affect private, public, and non-profit organizations if the organization has a board of directors or an advisory committee, regardless of size. Therefore, it is highly recommended that companies in these categories have D&O coverage to protect their directors from any potential claims against them. D&O coverage is tailored to meet the specific needs of each organization, so it is imperative to seek the advice of an experienced insurance expert to help determine the most appropriate and cost-effective coverage option. This coverage will provide protection for the directors in the event of any legal claims against them concerning decisions made while acting in their official capacity.

What are my legal responsibilities under the law?

Under the law, Directors and Officers must:

(1) Act in good faith and in the best interest of the society
(2) Act with a duty of care as a reasonably prudent person
(3) Perform duties in accordance with applicable statutes and your own charter.

Under what statutes can a director or officer be liable?

The following are various federal and provincial statutes a Director or Officer can be liable under:

Secured yourself a boar role? Understand your coverage. Connect with your local broker to discuss D&O questions. Learn more about Directors and Officers coverage with Gifford Carr!

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Sources: Travelers Canada, Insurance Bureau Canada
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