In rejecting a submission of the second appellant (Mr MacKay) that he had satisfied his due diligence defence by delegating management of the corporation (including responsibility for HST remittances) to a third party manager, D'Arcy J stated (at para 49) that:
due diligence normally requires that, when a director becomes aware, or ought to have become aware, the the company is falling behind with its remittances, he or she should take some positive steps to prevent the default
and (at para 64) "such a delegation is not an abdication and does not exonerate Mr. MacKay from liability.
Somewhat similarly, "once Mr. Power [the first appellant] became aware of the financial problems of the Corporation, he should have taken some positive steps to assure himself that the Corporation was remitting the HST," which he failed to do. Both appellants were liable under s. 323.