Canada: The Enforceability Of Guarantees Given By Officers And Directors Of Corporate Borrowers And Sophisticated Individuals

Last Updated: October 25 2018
Article by Shawn M English

As a mechanism for safeguarding the enforceability of a guarantee, it is common practice for commercial lenders to require that personal guarantors obtain independent legal advice with respect to the obligations and risks being assumed by the guarantor under his or her guarantee. Independent legal advice precludes the guarantor from alleging that he or she did not fully comprehend such risks and that he or she was unduly influenced or pressured by the borrower to provide the guarantee. Although common practice for many commercial lenders, there have been circumstances in which the Courts have upheld the enforceability of a guarantee notwithstanding the lender's failure to require that the guarantor obtain independent legal advice.

One such case is Meridian1, in which the Ontario Superior Court of Justice confirmed that independent legal advice is not required prior to signing a guarantee if the guarantor is an officer or director of the corporate borrower.2 In Meridian, the borrower, 2428128 Ontario Limited ("242"), entered into a loan agreement with Meridian Credit Union Limited ("Meridian"). The loan was secured by way of an unlimited personal guarantee given by the director, president and secretary of 242, Kiky Arraf-Bishara ("Kiky"). Upon default by 242 on the loan, Meridian sought recourse against Kiky pursuant to the personal guarantee. 

It was conceded that 242 had defaulted on the loan and that Meridian was entitled to the full amount of its damages.  However, Kiky submitted that only 25% of the damage amount should be adjudged against her personally on the basis that a Meridian representative had advised that her personal liability under the guarantee was limited to 25% of the original loan amount. Kiky further argued that she had not read any of the loan documents, including the guarantee, and that Meridian had not insisted that she seek independent legal advice with respect to the guarantee.   

The Court in Meridian found that the guarantee was clear and unambiguous in that it was an unlimited personal guarantee and that there was no evidence to support Kiky's claim that the Meridian representative had misrepresented the scope of the documents or advised her that the guarantee was limited in any manner. The Court held that independent legal advice was not required prior to signing this guarantee, as Kiky was an officer and director of 242.  Other factors influencing the Court's decision were that Kiky held a degree in Industrial Engineering and that the word "unlimited" appeared just above where the Guarantor signed her name.

The Court's finding that independent legal advice is not required in the event the guarantor is an officer or director of the corporate borrower is reasonable when one considers the primary rationale for requiring parties to obtain independent legal advice with respect to guarantees – to ensure the guarantor has not been unduly influenced or pressured into providing the guarantee. The parties to a loan agreement are typically the only parties receiving a direct benefit. In many cases, a personal guarantor is often a related party to the borrower, but does not typically share in the direct benefit of the loan. In the circumstance where the guarantor is a director or officer of the borrower, however, the Court has held that the director or officer guaranteeing the loan also shares in the benefit of the loan transaction by virtue of his or her position with the corporate borrower. Any concerns of undue influence or pressure are mitigated by virtue of the director or officer's senior position with the corporate borrower.

Meridian is one example of a recent trend whereby the Courts have consistently shown that they will not entertain defences from sophisticated and educated guarantors that (i) they did not read or understand the documents they signed, or (ii) they were misled or induced by the lender to provide guarantees broader in scope than the parties intended.

In Compas3, the guarantor was a political science professor heading up a pre-eminent public research firm and an officer of the borrower, who was characterized by the Court as a smart and savvy inpidual.  The guarantor was found to have been careless in the execution of the guarantee documents in a brief 5 – 10 minute meeting, which he quickly signed without actually reading their contents.  There was no evidence of any material misrepresentation on the part of the lender as to the scope or content of the document presented for signature, and the lender's motion for summary judgment against the guarantor was granted.4

Similarly in Cormier5, the Court rejected the guarantor's bare allegations of undue influence exerted by her step-father where no evidence was ever advanced in support of those claims or as to how the guarantee worked some unfairness against her.  Specifically, the Court noted that the guarantor had the education and business experience (as a business manager of an auto dealership) to understand the nature of the documents that were before her, and that she knew the line of credit she guaranteed would benefit the company of which she was an owner and vice president.6  Once again, the lender's motion for summary judgment against the guarantor was granted.

Despite the recent trend in Meridian, Compas and Cormier to hold personal guarantors who are sophisticated or officers and directors of the borrower to their bargains, it is always prudent for commercial lenders to confirm with their counsel, in the event there is any uncertainty, as to whether independent legal advice is required for any of the parties to ensure enforceability of a personal guarantee in a specific loan transaction.

Footnotes

1Meridian Credit Union Limited v. 2428128 Ontario Limited, 2017 ONSC 4578 [Meridian].

2Meridian at para 23.

3BNS v. Compas, 2018 ONSC 3262 [Compas]

4Compas at paras. 17, 19 and 20.

5Royal Bank of Canada v. 3255177 Nova Scotia Limited and Chantal Cormier, 2018 NSSC 181 [Cormier]

6Cormier at paras. 65 and 66.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
7 Dec 2017, Webinar, Toronto, Canada

FEX Members Jeff Noble, BDO, and Caroline Abela, WeirFoulds LLP, invite you to a complimentary webinar series titled: All About Shareholders.

11 Nov 2018, Seminar, Toronto, Canada

WeirFoulds Partner Glenn Ackerley will Chair the RICS & CIQS 5th Annual Construction & Project Management Seminar.

 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions