Proclamation of Notaries and Commissioners Act
The Notaries and Commissioners Act (the
"NCA") will come into force on April 30,
2015. It repeals the Commissioners for Oaths Act and
the Notaries Public Act and enforces consequential
amendments to the Guarantees Acknowledgment Act (the
Current Requirements of the GAA
Currently, the GAA requires that a personal guarantor must
appear before a notary public, acknowledge the execution of the
guarantee, and sign a Certificate of Notary Public (as set out
in the Regulations to the GAA) (a "Certificate") in the
presence of a notary public, with the notary public having to apply
his or her notary seal.
The Alberta Courts have enforced strict compliance to the GAA,
stating that deviating from the provisions of the GAA will render
the guarantee invalid and unenforceable against the personal
Legislative Changes to the GAA
As of April 30, 2015, the NCA changes the requirements for
whom a personal guarantor must appear before, acknowledge the
guarantee, and sign a Certificate.
If the Certificate is signed in Alberta, the Certificate must
now be completed by an "active
lawyer". An "active
lawyer" is defined as an active member of the Law
Society of Alberta who has not been suspended and is not an
honorary member. If the Certificate is signed in another
jurisdiction other than Alberta, a lawyer in good standing entitled
to practice law in that jurisdiction is permitted to sign the
Certificate. Please note that the Certificate is not required
for a corporate guarantor.
As of April 30, 2015, a notary public (who is not a lawyer) and
a student-at-law are no longer permitted to sign the Certificate
under the GAA.
This legislative change was intended to ensure that
individuals completely understand the nature of a guarantee
from a lawyer who has the knowledge and background to explain the
legal ramifications of being a personal guarantor.
All personal guarantees executed on or after April 30, 2015 will
require the Certificate to be signed by an active lawyer (as
defined above) in Alberta, or a lawyer entitled to practice law in
the jurisdiction where the guarantee is executed. All forms
of Certificates need to be updated to remove references to notaries
public to ensure that the personal guarantees will be valid and
enforceable under the amended GAA.
In addition, beneficiaries of a personal guarantee should ensure
that an Alberta lawyer signing the Certificate is an active lawyer
who has not been suspended and is not an honorary member of the
Alberta Bar Association or, if the Certificate is signed in another
jurisdiction, that the lawyer signing the Certificate is entitled
to practice law in the jurisdiction where the guarantee is
On February 24, the Supreme Court of Canada heard the appeal in Teva Canada Inc. v. Bank of Montreal. The appeal concerns who bears the loss for cheques payable to fictitious or non-existing payees, which were fraudulently issued by an employee.
Cassels Brock developed this Lessons Learned series based on our experience with priority disputes between secured creditors and the realization that many secured parties make fundamental errors of law...
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