What community standards of commercial morality apply to a lender who has a guarantee on a mortgage?

Alberta, Canada


The following excerpt is from Ohlson v. Canadian Imperial Bank of Commerce, 1997 ABCA 413 (CanLII):

Looking to (without adopting) the standard set out by Lambert J.A. in Harry v. Kreutziger, supra, namely that of seeking guidance as to community standards of commercial morality from legislation that embodies those standards in law, it would be appropriate to look at the Guarantees Acknowledgement Act for guidance as to what the community standard requires in order for a lender to meet this standard. A guarantee in the normal case requires independent advice. Thus, where the substance of a transaction is a guarantee, one should examine the transaction carefully to see if it is the kind of transaction which the Act is intended to protect. On the facts of this case, I am satisfied that the financial institution having this elderly mother sign a promissory note and equitable mortgage where the transaction is in reality a guarantee of past indebtedness, and thereby vastly improving its position, is unconscionable.

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