Notaries public and commissioners for oaths in Alberta will be governed by new legislation and regulations effective April 30, 2015. They will now both be governed under the Notaries and Commissioners Act.  The legislative amendments also contain consequential amendments to the Alberta Evidence Act and the Guarantees Acknowledgement Act.

The following is a summary of important features of the new legislation which affect notaries and commissioners:

• Members of the Law Society of Alberta and students-at-law continue to be notaries and commissioners by virtue of their office or status. “Lawyer” is defined as a member of the Law Society, other than an honorary member, who has not been suspended or disbarred. This means that inactive and non-practicing members may still act as notaries and commissioners, as well as those with active practicing status. Those who rely on their status or office to act as notaries and commissioners may do so as long as they maintain the required status, and are not subject to expiration dates as are those who apply to be notaries and commissioners.  (Sections 3 and 16.)
• All notaries may administer oaths or take affidavits, affirmations or declarations, as well as certify true copies and witness or certify the execution of documents. Only those notaries who are also lawyers or judges may witness, certify or attest deeds, contracts and commercial instruments which they have prepared, or in respect of which they have provided legal advice. There is no longer any reference to notaries drawing or issuing deeds or contracts which existed in the old Act. The powers of lay notaries are accordingly more limited in the new Act. The maximum potential fine for acting without authority under the Act is $5,000, up from $500. (Sections 4 and 7.)
• Under the old legislation, it was not necessary for a notary to affix a seal to an affidavit or declaration for it to be valid for use within Alberta. The new legislation requires a notary to affix a seal to all documents, whether for use in Alberta or out of province. The seal must bear the notary’s name and the words “Notary Public” and “Province of Alberta”. (Section 5.)
• Under both the old and new legislation, a notary is required to endorse on the document the notary’s name and, if appointed, the date on which the appointment expires. The new legislation requires, in addition, that a notary acting by virtue of his or her office or status must also indicate the notary’s position on the document.  Active practicing lawyers may describe themselves as barristers and solicitors, lawyers, or members of the Law Society of Alberta. It is important for inactive or non-practicing members to specifically indicate their status, to avoid holding themselves out as engaged in active practice.  Students-at-law must also indicate their status on documents when acting as notaries. No expiry date is required. The maximum potential fine for contravention of these provisions in the new Act is now $1,000, up from $100. (Section 5.)
• Eligible lay notary public and commissioner for oaths applicants must be over 18, Canadian citizens or permanent residents, and must reside in Alberta or in that part of Lloydminster which is located in Saskatchewan. The reference to Lloydminster in the Notaries and Commissioners Act is new. (Sections 8 and 20.)
• If a notary or commissioner is acting in that capacity as a result of his or her Law Society membership, any complaints regarding the conduct of that individual will be referred to the Law Society. The obligations of lay notaries and commissioners and the ability of the government to refuse applications or to suspend or revoke appointments are also set forth with greater clarity in the new Act. (Sections 10, 11, 22 and 23.)
• As before, all notaries are automatically commissioners for oaths. (Section 16(2).)
• In certain cases, commissioners may take oaths or affidavits outside Alberta for use in Alberta.  This applies to political representatives and Canadian Forces officers who may not be resident in Alberta or in Canada. The only other individuals who may administer oaths both inside and outside of Alberta, for use in Alberta, are those who reside in or provide services as commissioners for oaths in that part of the City of Lloydminster which is located in Saskatchewan. (Section 16(3), as well as section 29 of the amending legislation which amends section 47(2) of the Alberta Evidence Act.)
• When commissioning documents, commissioners for oaths must endorse their names, the date of the expiry of their appointment if applicable, and the words “A Commissioner for Oaths in and for Alberta”. This requirement may prompt many lawyers to review their stamps. If you are using a stamp that makes reference to a “Commissioner for Oaths in and for the Province of Alberta”, you may continue to use it.
• If acting by virtue of an office or status, the commissioner must indicate that status on the document as well. As noted above, lawyers may describe themselves as barristers and solicitors, lawyers, or members of the Law Society of Alberta. Inactive or non-practicing members of the Law Society and students-at-law must also take extra steps to indicate their status. The maximum fine for non-compliance is now $1,000, up from $100. (Section 17.)
• Anyone administering an oath without appropriate authority is subject to a maximum potential fine of $5,000, rather than the $500 fine previously in place. (Section 19.)

There is now also a code of conduct for all notaries and commissioners, set forth in the regulations which have been promulgated under the new Act.  The following requirements are of particular relevance:

• The codes do not conflict with codes of conduct of other professions, and recognize that notaries and commissioners must also comply with other laws and directives that govern them.
• Notaries and commissioners are to discharge all of their responsibilities with integrity, courtesy and professionalism, and in an ethical and responsible manner.
• There is an obligation to hold confidential information in strict confidence, except as required to perform the notary’s or commissioner’s services, or as otherwise required by law.
• Notaries and commissioners must not, among other things, notarize/commission or participate in the preparation or delivery of a document that is false, incomplete, misleading, deceptive or fraudulent. Furthermore, they must not participate in the preparation of a document that has the appearance of being issued by a court or other legitimate authority when it is not, or a document that is otherwise lacking valid legal effect. This is relevant when dealing with OPCA litigants, for example, as described in the case of Meads v. Meads, 2012 ABQB 571 (CanLII).

The legislative amendment also gives rise to a consequential amendment of the Guarantees Acknowledgement Act, which will now require that a guarantor appear before an active practicing lawyer to acknowledge that he or she has executed the guarantee. This is a significant change as non-lawyer notaries and students-at-law may no longer perform this function. The guarantor must sign a certificate in prescribed form in the presence of the lawyer. The lawyer must be satisfied that the guarantor is aware of and understands the contents of the guarantee before issuing the prescribed form of certificate.  The provision limiting the lawyer’s compensation to $5 has been repealed.

Lawyers should clarify whether they are simply satisfying themselves that the guarantors are aware of and understand the contents of the guarantees, or whether they are actually providing more extensive advice with regard to the legal effect of the guarantee. Lawyers presiding over the execution of guarantees or providing legal advice should consider the existence and impact of any potential conflicts of interest which may arise from the joint representation of lenders and borrowers, or from the joint representation of borrowers and guarantors.  There are also restrictions on lawyers providing personal guarantees of client loans in Alberta’s Code of Conduct. Lawyers should refer to Code of Conduct commentary governing lawyers’ personal business dealings with clients.

Consequential amendments to the Alberta Evidence Act are more minor and do not generally give rise to substantive changes. One notable change, however, is that section 47(2) no longer allows all Alberta commissioners for oaths to administer valid oaths outside the jurisdiction. AS indicated above, only those listed in section 16(3) of the new Act may do so.

Alberta lawyers may obtain the new legislation and regulations from the Alberta Queen’s Printer website.

The link to the Act is as follows:

http://www.qp.alberta.ca/1266.cfm?page=N05P5.cfm&leg_type=Acts&isbncln=9780779783755

The Guarantees Acknowledgment Act Certificate form can be found:

http://www.qp.alberta.ca/documents/gazette/2014/pdf/24_Dec31_Part2.pdf

We also have it available here in word version.

Information and Instructions for Notaries Public:

http://justice.alberta.ca/programs_services/official/Documents/NotariesPublicBooklet.pdf

The Practice Advisors are available to answer questions from the profession regarding lawyers’ ethical obligations and practice standards.

Written by: Nancy Carruthers, Practice Advisor