In our April 17, 2020 previous publication, we explained the challenges involved in complying with the Guarantees Acknowledgement Act (Alberta) (the “GAA”) during the COVID-19 pandemic, because of the requirement that a personal guarantor appear in person before a lawyer.
Fortunately the Alberta Government has now relaxed the traditional procedural requirements under the GAA in order to facilitate execution of personal guarantees, while social distancing measures remain in effect. Pursuant to Section 52.1 of the Public Health Act (Alberta) the Minister of Justice and Solicitor General has, by Ministerial Order 29/2020, ordered that a guarantee to which the GAA applies will have effect where the guarantor:
This relaxation follows the model set by the earlier Ministerial Orders relaxing Alberta’s “in-person” requirements for a number of similar legal documents, such as affidavits and statutory declarations required for certain court proceedings or registrations under the Land Titles Act (Alberta). To facilitate execution, the provincial government, working in coordination with the Law Society of Alberta, published certain Ministerial Orders relaxing the procedural requirements for affidavits and statutory declarations during the pandemic, by substituting a system based on two-way video conferencing.
When the relief from the “in-person” and “appearance” requirements of the GAA is being relied on, a conforming modification must be made to the form of certificate prescribed under the GAA to reflect that the “appearance” and “presence” requirements have been met on a “virtual” basis through video conferencing. The substantive requirement of the certificate continues, being the statement by the lawyer that, based on an examination of the guarantor, the lawyer is satisfied that the guarantor is aware of the contents of the guarantee and understands it.
Legal counsel representing the lender should keep in mind that originally signed documents should still be obtained, because Alberta’s Electronic Transaction Act does not apply to guarantees under the GAA. Accordingly, lawyers should consider having the guarantor scan copies of the executed pages to them and request the originals to follow. The Law Society of Alberta has published guidance for video conference witnessing and commissioning that can assist with establishing best practices for execution of all documents, including guarantees under the GAA, by two-way video conference.
This relief shall continue as long as the state of public health emergency remains in effect and is set to expire August 14, 2020, unless otherwise terminated or extended by the Lieutenant Governor in Council.
Please note that the information provided in this article does not constitute legal or professional advice or a legal opinion of any kind. If you require any assistance regarding specific legal issues with respect to personal guarantees in Alberta, please reach out to a member of the Dentons Canada team or other legal counsel.