"That Must be a Nice Document to Have": Non Est Factum and Section 5 of the Guarantees Acknowledgment Act

Authors

  • Rachel Weary

DOI:

https://doi.org/10.29173/alr2836

Abstract

The Guarantees Acknowledgment Act (GAA) requires that a lawyer be satisfied that a prospective guarantor understands the guarantee they are giving. Section 5 of the GAA provides that a GAA certificate is “conclusive proof” that the GAA has been complied with. This article examines the lack of clarity in Alberta case law on section 5, the GAA certificate, and the common-law defence of non est factum. Some decisions have permitted guarantors to plead non est factum even though a GAA certificate has been issued. Others have treated a GAA certificate as a total bar to a defence of non est factum — an interpretation which, from a lender’s point of view, would make a GAA certificate a “nice document to have” indeed. Despite the growing dominance of this latter interpretation, this article contends that it is not supported by the actual text of the GAA.

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Published

2025-06-23

Issue

Vol 62, No 4

Section

Articles

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