Amendments to Alberta’s Guarantees Acknowledgment Act

On December 11, 2013, the Alberta Legislative Assembly gave royal assent to Bill 44: Notaries and Commissioners Act[1], which included some significant amendments to the Guarantees Acknowledgment Act (Alberta)[2] (the “GAA”). Upon proclamation, the following amendments come into force:

  1. a person who is not a corporation must now appear before a lawyer, rather than a notary public, and acknowledge to the lawyer that the person has executed the guarantee and certified the same in the presence of a lawyer;
  2. the lawyer must not represent or be employed by a person or corporation who stands to benefit as a result of the guarantee;
  3. the lawyer must be satisfied and certify that the guarantor is aware of the contents of the guarantee and understands it; and
  4. unlike the previous regime, the fee payable to the lawyer for the services incidental to the guarantee is no longer capped at $5.00.[3]

More recently, on December 17, 2014, Bill 8: Justice Statutes Amendment Act 2014 (“Bill 8”)[4] was proclaimed into force, which further amended the GAA by removing the onerous requirement that the lawyer issuing the certificate of guarantee be independent of any person who stands to benefit from the guarantee, and providing a definition of a lawyer for the purposes of the act.[5] According to Bill 8, a lawyer, with reference to an acknowledgment made under the GAA in Alberta, means an active member of the Law Society of Alberta, other than an honorary member, who has not been suspended; and with reference to an acknowledgment made under the GAA in a jurisdiction other than Alberta, a lawyer entitled to practice law in that jurisdiction.[6]

Bill 8 does two things of note. First, by the definition of a lawyer provided in the bill, a student-at-law practicing in Alberta is no longer entitled to issue an acknowledgment in respect of a guarantee governed by Alberta law. This is significant for law firms who typically involve their students with notarial-related services. In the context of guarantees, students-at-law cannot issue an acknowledgment. Second, while the requirement that a guarantor retain independent counsel to acknowledge and certify a guarantee has been removed, the process for giving a guarantee still remains more costly than under the current legislative scheme because the lawyer issuing an acknowledgment is now entitled to charge any amount he or she deems appropriate.

The amendments to the GAA under Bill 8 do not come into effect until the initial amendments under the earlier pronounced Bill 44 are proclaimed into force, which is expected to be April 30, 2015, on the date the Notaries Public Regulation, Alta Reg 68/2003 expires.

[1] Bill 44: Notaries and Commissioners Act (“Bill 44”)

[2] Guarantees Acknowledgment Act, RSA2000 c G-11 (“GAA”).

[3] Bill 44, supra note 1 at section 31

[4] Bill 8: Justice Statutes Amendment Act 2014 (“Bill 8”)

[5] Bill 8, ibid at section 7(2)

[6] ibid