Alberta Guarantees Acknowledgement Act – Ambiguous Amendments Reconsidered

This post was written prior to our January 2017 merger, under our previous firm name, MacPherson Leslie & Tyerman LLP.

On March 7, 2014, I blogged regarding my concerns with amendments to Bill 44: Notaries and Commissioner’s Act. Buried within Bill 44 were amendments to the Guarantees Acknowledgement Act (GAA) which created ambiguity regarding how to properly notarize guarantee certificates in Alberta. Such ambiguities included potential conflicts and onerous definitions which could inadvertently render a guarantee ineffective.

Bill 44 was approved, but was not brought into force.

On December 17, 2014, Bill 8: Justice Statutes Amendment Act received royal assent. Bill 8 contains further amendments to the Guarantees Acknowledgement Act (GAA) which appear to address concerns regarding Bill 44 which were raised by many lawyers who practice in debtor and creditor law.

As a result of Bill 8, section 3 of the GAA now requires that a lawyer (no longer a notary public) execute the requisite guarantee certificate.

Bill 8 also removes Bill 44’s prohibition against a lawyer executing a guarantee if that lawyer represents or is employed by a person or corporation who stands to benefit as a result of the guarantee. In any event, section 2.04 of the Law Society of Alberta Code of Professional Conduct imposes a duty on lawyers not to act for a client where a conflict of interest exists.

Of note, however, is that Bill 8 amends Bill 44 and Bill 44 has not yet come into force. This means that the original, unedited version of the GAA remains effective until Bill 44 is brought into force. At that time, the revisions contained in Bill 8 will take effect. Upon proclamation of Bill 44, it appears as though the controversy surrounding the prior amendments to the GAA have now been resolved by Bill 8.