February 22, 2012
In this edited collection of blog posts, Dentons Partner Timothy M. Banks discusses his take on writing board minutes from a litigation risk management perspective.
Board meeting minutes are required by nearly all business corporation statutes in Canada. More importantly, maintaining board minutes is prudent. Failing to accurately record the board’s deliberations with appropriate detail may lead to adverse inferences regarding whether directors have fulfilled their duties. Nevertheless, there is a natural tension between providing sufficient detail to avoid any adverse inference being drawn against the directors and a lingering apprehension that an innocuous record might, with hindsight, be twisted out of context in litigation. And, of course, drafting well-written and well-structured board minutes is time consuming!
In his blog posts on this topic, Timothy outlined five litigation-driven suggestions that the corporate secretary might consider when preparing minutes. In summary, those suggestions are:
1. Use the “Front Page of the Newspaper” Test
2. Keep the Purposes Front and Centre
3. Draft to Minimize Unnecessary Production
4. Draft to Protect Privilege and Confidentiality
5. Be Alert to Process Issues
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