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It is hard to believe that the COVID-19 pandemic brought the world to a halt over five years ago, yet vestiges of the changes it ushered in remain to this day. Many legal regulations implemented at the beginning of the pandemic that allowed for the signing and commissioning of documents remotely are still in effect, where previously they had to be completed in person with a lawyer, notary public or commissioner-for-oaths.
These regulations were implemented to abide by social distancing measures, which have not been mandated now for years. However, lawyers and their clients alike continue to make use of these regulations, because of the convenience it affords individuals who live remotely, who are travelling or who otherwise cannot meet with their lawyers.
This past year, the Alberta Government authorized the remote execution of estate planning documents on an indefinite basis, based on an initiative that was originally introduced in June 2020 by the COVID-19 Pandemic Response Statutes Amendment Act, 2020, or Bill 24. Have guarantees been given the same treatment?
In 2020, the Alberta Government temporarily relaxed the traditional requirements under the Guarantees Acknowledgment Act (Alberta) (the GAA) to accommodate remote execution for personal guarantors during the COVID-19 pandemic. At the time, personal guarantors had been required to appear physically before a lawyer to execute a Guarantee Acknowledgment Certificate, presenting challenges under public health restrictions. Since then, the Alberta Government has implemented and extended a framework for two-way video conferencing for the execution of Guarantee Acknowledgement Certificates. As of now, that framework remains in force permanently.
Remote execution framework under the GAA
The Alberta Government first introduced remote signing through Ministerial Order 29/2020 under the Public Health Act in response to COVID-19. The Order permitted the use of two-way video conferencing for acknowledgments under the GAA. This was codified in June 2020 by Bill 24, which amended the GAA to include a new section permitting acknowledgments by video conference.
To support this, the Guarantees Acknowledgment Forms Amendment Regulation (AR 144/2022) introduced Form 2 for remote execution. The validity period for this form was extended first through Ministerial Order M.O. 10/2022, extending the validity of the legislation through to August 15, 2024.
That relief has since been further extended permanently. On December 5 and 6, 2024, the Alberta Government amended Section 3.1(1) of the GAA and its regulations to preserve the option for remote execution and remove the August 2024 deadline.
Furthermore, since December 17, 2024, the Guarantees Acknowledgment Forms Regulation, Alta Reg 66/2003 has removed the former time limit on using Form 2. Previously, the regulation allowed Form 2 "for the period commencing August 15, 2020 up to and including August 15, 2025." The revised provision deletes that temporal clause. Read together with the 2024 amendment to GAA s. 3.1(1), this change converts remote acknowledgment from a pandemic-era exception into an ongoing, standing option.
Statutory requirements for remote acknowledgment
Section 3.1 of the GAA (Acknowledgment by video conference) provides that a guarantee may be validly acknowledged if the guarantor:
- Appears before a lawyer by two-way video conferencing;
- Acknowledges executing the guarantee; and
- Signs the prescribed certificate (Form 2) during the video conference while the lawyer observes.
The substantive elements of the lawyer's certificate remain unchanged. The lawyer must still be satisfied, through examination, that the guarantor is aware of the contents of the guarantee and understands its effect.
A further practical nuance arises when the guarantor is physically located outside Alberta (including temporarily outside Canada) at the time of the video conference. While section 3.1 authorizes acknowledgment by two-way video conferencing, the GAA defines "lawyer" as follows:
"Lawyer" means,
- with reference to an acknowledgment made in Alberta, an active member of The Law Society of Alberta, other than an honorary member, who has not been suspended, and
- with reference to an acknowledgment made in a jurisdiction other than Alberta, a lawyer entitled to practise law in that jurisdiction.
Accordingly, when a guarantor is located outside of Alberta, best practice dictates that they meet with a lawyer entitled to practise law in that jurisdiction. Although, the remote-execution framework under the GAA theoretically allows for a video conference with that lawyer, to err on the side of caution, an in-person meeting is preferable wherever possible.
Form requirements and use of wet ink
Alberta's Electronic Transactions Act does not apply to guarantees governed by the GAA. Section 7.1 of that Act excludes such guarantees from the regime permitting electronic signatures. As such, wet ink signatures remain required for all GAA documents, including those executed via Form 2. Lawyers should ensure that original signed documents are obtained and retained for evidentiary purposes.
The Guarantees Acknowledgement Forms Regulation specifically provides that "Form 2 may be used instead of Form 1 if the certificate is being executed by two-way video conferencing." Accordingly, where Form 2 is used, the certificate should clearly indicate that the acknowledgment occurred remotely and not in person.
Conclusion
Remote execution of Guarantee Acknowledgment Certificates via video conference continues to be legally valid in Alberta. Lawyers advising clients or lenders should ensure compliance with the statutory and regulatory framework, including proper use of Form 2 and adherence to the requirement for original, wet ink signatures.
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