Proclamation of Notaries and Commissioners Act (Alberta)
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 "GAA").
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 guarantor.
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.
Rationale
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.
Implication
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 executed.
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.
