Until now, Alberta law required that a personal guarantee be executed with the assistance of a notary public. Effective April 30, 2015, a notary public can no longer execute the certificate required by Alberta law. The certificate must be executed by a lawyer. Failure to comply with the law will likely render the guarantee unenforceable.
On December 4, 2013, the Government of Alberta passed the Notaries and Commissioners Act, which received royal assent on December 11, 2013 (the “NCA”). The NCA comes into force on proclamation. The date for proclamation is set for April 30, 2015. The published objective of the NCA is to consolidate and modernize the Notaries Public Act and the Commissioners for Oaths Act.
The NCA also amends the Guarantees Acknowledgment Act (the “GAA”). As it currently stands, the GAArequires the following:
- a guarantee given by an individual must be acknowledged by that individual before a notary public;
- the notary public must examine the guarantor and be satisfied that the person is aware of the contents of the guarantee and understands it;
- if satisfied that the party is aware of the contents and understands it, the notary public shall issue a certificate (the “Certificate”) in the form prescribed by the regulations to the GAA;
- the fee charged by a notary public who executes the Certificate may not exceed $5.00; and
- the guarantee has no effect unless:
- the person entering into the guarantee appears before the notary public, acknowledges to the notary public that the person executed the guarantee; and
- signs a statement at the foot of the Certificate of the notary public in the prescribed form.
Once proclaimed into force on April 30, 2015, the NCA and the GAA, when read in conjunction, will encompass the following changes:
- no guarantee has an effect unless the individual guarantor
- appears before a lawyer;
- acknowledges to the lawyer that the guarantor executed the guarantee; and
- signs the prescribed form of certificate;
- the lawyer must be satisfied by examination of the individual guarantor that he or she is aware of the contents of the guarantee and understands it;
- if satisfied that the individual is aware of the contents of the guarantee and understands it, the lawyer must issue a certificate in the prescribed form (the prescribed form of certificate is not yet finalized);
- “lawyer” means, with reference to an acknowledgment made in Alberta, an active member of The Law Society of Alberta;
- “lawyer” means, with reference to an acknowledgment made outside the Province of Alberta, a lawyer entitled to practise law in that jurisdiction;
- since a student-at-law is not an active member of The Law Society of Alberta, they are not permitted to execute the certificate; and
- there is no cap on the fee a lawyer can charge to execute the certificate of a guarantee.
Once these amendments to the GAA come into effect, it will be important to implement these changes in order to ensure that a guarantee is enforceable.