Effective governance depends not only on sound decision-making, but on the ability to demonstrate that decisions were made through a thoughtful, informed, and defensible process. For boards and the legal professionals who advise them, minute-taking plays a critical role in that accountability. As organizations increasingly turn to AI-assisted tools to support governance functions, it is essential to understand both the legal foundations of board minutes and the risks and responsibilities that accompany new technologies.
Under the Not-for-Profit Corporations Act (Ontario) (ONCA), directors owe two core duties: the fiduciary duty to act honestly and in good faith in the best interests of the corporation, and the duty of care to exercise the diligence, care, and skill of a reasonably prudent person in comparable circumstances. Courts assessing board decisions focus less on outcomes and more on process. This principle, often referred to as the business judgment rule, asks whether directors had sufficient information, examined it critically, and allocated appropriate time to the decision. Properly prepared minutes are one of the clearest records of that process.
Well-drafted minutes are not transcripts. Best practices emphasize that minutes should be accurate, clear, and concise, capturing decisions made and the information relied upon, without reproducing verbatim discussion. They should identify the date, time, and place of the meeting, attendance and regrets, whether the meeting was a board or committee meeting, and whether discussions occurred in a general or in-camera session. Minutes should be written in the past tense and reflect that materials were reviewed, questions were asked, and deliberation occurred. For example, noting that a "robust discussion occurred with multiple questions asked" can be sufficient to demonstrate engagement without creating unnecessary detail.
Where professional advice is sought, the fact that advice was obtained should be recorded, but not its substance, in order to maintain privilege. Briefing notes and documents relied upon should be referenced and retained with the minutes to provide a complete picture of the information available to the board. More detailed minutes may be appropriate where matters are contentious, where there is dissent, or where there is increased exposure to liability. Directors retain the right to have their dissent minuted, and conflicts of interest must be clearly documented, including the nature and extent of the interest.
Against this established governance framework, the use of AI and automated note-taking tools presents both opportunities and risks. There is no legal prohibition on using AI to assist with minutes, and such tools can improve efficiency and organizational productivity. However, boards and counsel must proceed with care.
AI-generated records may be unvetted, unfiltered, and overly detailed, capturing side comments, informal remarks, or incomplete thoughts that were never intended to form part of the official record. These materials may be discoverable in litigation and could undermine, rather than support, the board's position. Risks also include inaccuracies, hallucinations, and bias, such as undue emphasis on comments from more senior participants. Automated distribution of draft minutes or summaries can create further risk, including the unintended waiver of legal privilege.
Data security and confidentiality are also critical concerns. AI vendors may have access to sensitive corporate information stored on external systems, raising issues in the event of a data breach or cyber incident. Conflicting records created by parallel note-taking systems may further complicate the clarity of the board's deliberations. There is also the potential for a chilling effect on boardroom debate if directors feel their comments are being permanently recorded.
Best practices for using AI in minute-taking begin with thorough vendor due diligence. Organizations should ensure they control how the software is used, how outputs are distributed, and where data is stored. Contracts should clearly define data ownership, restrict secondary use, and require deletion upon termination. Internally, boards should adopt clear policies governing the use of AI, provide notice to participants, and obtain consent as a matter of good practice. Importantly, AI-generated notes should be retained only as tools to assist the creation of vetted minutes, then destroyed. Meeting notes themselves are not minutes, and a "human in the loop" remains essential — the corporate secretary is responsible for preparing the official record and should not abdicate that role to an AI tool.
These principles apply with particular force in the context of in-camera board meetings, where confidential or sensitive matters such as litigation, senior management performance, real estate, or legal advice may be discussed. In-camera meetings are formal board meetings at which decisions may be made and must be properly minuted, with separate records approved at the next in-camera session.
As governance practices evolve, the fundamentals remain unchanged. Minutes exist to evidence process, not perfection. AI can be a useful tool, but it does not replace judgment, discretion, or legal responsibility. Boards and their advisors must ensure that technology supports — rather than undermines — sound governance and the duties directors are entrusted to uphold.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
