Notaries public (“notaries”) and commissioners for oaths (“commissioners”) in Alberta are governed under the Notaries and Commissioners Act (Alberta) (the “Act”). Notaries are also subject to the Notaries Public Regulation while commissioners are subject to the Commissioners for Oaths Regulation (collectively, the “Regulations”).  Both sets of Regulations contain codes of conduct for each role.

All lawyers and students-at-law are notaries and commissioners.  A “lawyer” includes any member of the Law Society of Alberta, other than an honorary member, who is not suspended or disbarred.  Inactive and non-practicing lawyers may act as notaries and commissioners.  However, any suspended or disbarred lawyer must cease all notary or commissioner activity unless they are reinstated.  This is also true for any administratively suspended lawyers.

Notaries and Commissioners – General

The role of a notary and that of a commissioner are similar with some important differences.  Notaries can:

• administer oaths or take affidavits, affirmations or declarations and attest the oaths, affidavits, affirmations or declarations;
• certify and attest a true copy of a document; and
• witness or certify and attest to the execution of a document.

Oaths, affidavits, affirmations and declarations sworn or affirmed outside of Alberta before a notary public have the same effect as if they were sworn or affirmed within Alberta (see sections 47(1) and (2) of the Alberta Evidence Act).

Commissioners may only administer oaths and take and receive affidavits, affirmations and declarations in Alberta for use in Alberta.  In some limited circumstances (see section 16(3) of the Act as well as sections 47(2) and 48 of the Alberta Evidence Act) certain commissioners may administer oaths for documents outside of Alberta when those documents are meant for use inside Alberta.

Notaries Public – Formalities

All notaries must obtain a seal that bears that notary’s name and the words “Notary Public” and “Province of Alberta”.  This seal must be applied to each document on which the notary attests.  Lawyers can purchase a seal from suppliers that offer embossing seals.

In addition to placing the seal on the attested document, notaries must also legibly print or stamp their name.  Notaries who were appointed must include their appointment’s expiration date.  Notaries who are lawyers must indicate their status as lawyers Students-at-law must also indicate their status as a student-at-law. Inactive and non-practicing lawyers should qualify their status to avoid holding themselves out as practicing lawyers.

Commissioners for Oaths – Formalities

Commissioners are not required to apply a seal to their attested documents. However, commissioners are required to endorse the document with their names and the words “A Commissioner for Oaths in and for Alberta”.  Commissioners who are lawyers must indicate their status as lawyers. Students-at-law must also indicate their status as a student-at-law. Inactive and non-practicing lawyers should qualify their status to avoid holding themselves out as practicing lawyers.

Conduct

The Regulations set out codes of conduct for notaries and for commissioners, respectively. Each code is substantially the same.  Complaints against notaries and commissioners who are also lawyers or students-at-law may be referred to the Law Society of Alberta for investigation and, if appropriate, sanction.  Lawyers and students-at-law are expected to adhere to the standards set out in the Law Society of Alberta’s Code of Conduct in addition to the codes set out in the Regulations.

Notaries and commissioners must not participate in the preparation or delivery of any document that is false, incomplete, misleading, deceptive or fraudulent.  This requires notaries and commissioners to carefully review each document and to ask questions.

The Court has also confirmed that lawyers must not take steps to formalize documents that are part of an “organized pseudolegal commercial argument” (OPCA) (see: Meads v Meads, 2012 ABQB 571 at para 645).  Lawyers who knowingly or even unknowingly reinforce an OPCA litigant’s argument by notarizing or commissioning their documents may be referred to the Law Society of Alberta for investigation and, if appropriate, sanction.  Accordingly, lawyers should carefully review documents and understand their purpose prior to execution.  If there is any doubt, lawyers should contact a Practice Advisor and decline to notarize or commission the document at that time.

Notaries and commissioners should also avoid taking any steps to formalize documents or to administer oaths and affirmations for their spouses.  Doing so could undermine section 8 of the Alberta Evidence Act.

Remote and Virtual Executions of Documents

The Law Society of Alberta does not set rules governing remotely executed or attested documents. It is the responsibility of the notary or commissioner to determine if it is permissible to notarize or commission a document virtually or remotely. Lawyers may consult the relevant legislation, regulation or other authority.  Additionally, lawyers can check with the authority for whom the document is intended to determine if remote execution is acceptable.  This may include checking with the court to determine if it accommodates remote execution of affidavits or other court documents.  Further information on remote and virtual execution of documents can be found in the Law Society’s Remote Legal Services FAQ.

In all cases, notaries and commissioners must not execute any document in a manner that would mislead someone as to how or where the document was executed.  Notaries and commissioners should clearly indicate that a document was executed virtually or remotely where applicable.

For further information on how to execute the duties of a notary public or a commissioner for oaths, lawyers and students-at-law can consult the Government of Alberta resources for Notaries Public and Commissioners for Oaths.  Practice Advisors are also available to assist.