Change

New Notaries and Commissioners Act in force April 30, 2015



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.

28 Comments

  1. 28 Alicia 21 Apr

    Where can we obtain seals?

  2. 27 Nancy 22 Apr
    If in Calgary, you can contact Accurate Stamp & Seal or Calgary Stamp & Stencil.  There may be others as well. Any company that does corporate seals should be able to assist.
  3. 26 Maureen 29 Apr
    My question relates to the consequential amendments to the Guarantees Acknowledgement Act - if a lawyer now has to witness the guarantee - where can we find the amended certificate in the prescribed form? or is it sufficient to change all reference from notary public to lawyer?  Thank you.
  4. 25 Angus 29 Apr
    Does the requirement for a commissioner to "endorse" the words “A Commissioner for Oaths in and for Alberta” permit those words to be printed on the document by a word processing program? Or do those words have to be printed by hand or ink stamp?
  5. 24 Nancy 30 Apr

    The GAAcertificate form is available at the following url:
    http://www.qp.alberta.ca/documents/gazette/2014/pdf/24_Dec31_Part2.pdf

    It has not been submitted yet to the Queen's Printer.

    With regard to the second question, as long as the reference to the commissioner is in the jurat of the printed document, that should be sufficient. The words wouldn't have to be stamped on the document if already appearing. Just keep in mind that lawyers have to identify that they are both commissioners for oaths and lawyers.

  6. 23 Rod 01 May
    can a seal be a stamp?
  7. 22 Alex 01 May
    If a lawyer is taking an affidavit in Alberta for use in Alberta, does it matter whether they identify themselves as a commissioner or a notary, or can they use either.
  8. 21 Lynn 01 May
    When you say lawyers have to identify that they are both commissioners for oaths and lawyers.  - does that mean that our stamp that identifies us as "barrister & solicitor" is not good enough, it also has to say - commissioner for oaths?
  9. 20 dave 01 May

    U.S. states differentiate between an ink stamp, an embossed stamp, and/or an embossed sticker -- the act just says "seal" -- do we have any idea what constitutes a seal?

  10. 19 Doug 02 May
    Legislation generally has no retoractive effect unless specifically stated. However Section 2 of the GAA states that it applies to all guarantees signed on and after Sept 1, 1969 so this date, read in conjunction with the section requiring a lawyer as notary, potentially invalidates all guarantees signed by non-lawyer notaries since Sept 1, 1969??
  11. 18 Legal Assistant Rae 02 May
    In the past, if documents were being signed, for example, in British Columbia or in the U.S., a Notary Public could be used instead of a Commissioner for Oaths, for the Affidavits of Execution in, for example, mortgages and transfers of land.  Can this practice continue?  And if a guarantee needs to be signed anywhere outside of Alberta, for example in another province,  the U.S. or overseas, must the guarantor attend before a lawyer?  It would not be too difficult to find a lawyer in another province, or in the U.S., but could be difficult overseas.
  12. 17 Nancy 04 May

    With regard to the questions relating to seals, see the updated Notary handbook on the government website at http://justice.alberta.ca/programs_services/official/Documents/NotariesPublicBooklet.pdf.  

    This excerpt explains the reference to the seal, and the handbook also contains an example:

    "Your name, the words "Notary Public" and "Province of Alberta" must appear on this seal. Your seal must be placed on each document that you attest to in your capacity as a Notary Public. The design and nature of a notarial seal is not mandated by statute. The Notary Public can choose a metal or rubber seal as best suits their requirements. Notarial seals can be purchased at most stationary or business supply stores."

  13. 16 Nancy 04 May
    Within Alberta, you can take an affidavit for use in Alberta in your capacity as either a notary or commissioner. If a  notarizing a document in Alberta, you must now affix your seal. You would have to ensure that you complied with the Act in either case, once you decide whether you're acting as a commissioner or notary.
  14. 15 Nancy 04 May
    In response to Lynn's comment, you can use your barrister and solicitor stamp. But you must also describe yourself on the document as a commissioner for oaths. This may already be in the jurat, for example, but if not you will have to ensure it's written somewhere on the document.
  15. 14 Nancy 04 May

    In response to Rae's comment, notaries in other jurisdictions may continue to notarize documents out of province for use here in Alberta.

    Guarantors must attend before lawyers, whether in our outside of Alberta, in order that the guarantee will  be valid. The Act requires out of province guarantees to be executed  in front of lawyers who are entitled to practice in the other jurisdiction.

  16. 13 Nancy 11 May
    In response to Doug's comment of May 2, the legislative drafters employed with the government have advised that, unless legislation specifically states it has retroactive effect, it will not.  Accordingly, the amendments have no effect on the validity of guarantees prior to April 30.
  17. 12 Bill Krys 09 Jun
    Have you heard what LTO is requiring due to new Notary Public Act? they require lawyers, if acting as commissioners, to state " a commissioner in and for AB being a lawyer". and if notarizing, "a notary public in and for AB, being a lawyer" and must have the lawyer's notary seal affixed. does this make sense?
  18. 11 Nancy 09 Jun
    I have heard this as well. This is what the new language of the Act requires. Please note 3rd, 4th and 10th bullet points in the above article.
  19. 10 Joe 06 Jul
    Keeping with Doug's comment, what statute ensures that s17(1) of the new act will not be applied retroactively?
  20. 9 Jenny H 14 Jul

    What would be the proper wording for an in-active lawyer (member of the Law Society). 

  21. 8 Nancy 16 Jul
    Inactive lawyers are well advised to use the wording "Member of the Law Society of Alberta (Inactive)".
  22. 7 Mary 10 Aug

    If: "As before, all notaries are automatically commissioners for oaths. (Section 16(2).)" and "Members of the Law Society of Alberta and students-at-law continue to be notaries and commissioners by virtue of their office or status", why must the members of the Bar also describe themselves as a commissioner for oaths? Shouldn't the Stamp or writing Barrister and Solicitor be sufficient? Thank you.

     

     

  23. 6 Bill 27 Aug
    Can Commissioners of Oath in Alberta certify true copies? If yes, what wording shall they write on the copy exactly?
  24. 5 Linda 14 Sep

    Hi: If someone agrees to witness a document being commissioned, must they know the person they are witnessing for?

     Thank-you

  25. 4 Nancy 22 Sep
    You do not need to know the person but you should check identification.
  26. 3 Maria 30 Sep
    Hi, my question pertains to a lay commissioner for the province of Alberta taking affidavits and statutory declarations IN Alberta BUT to be submitted to the Citizen and Immigration Canada (CIC) as requirement for immigration applications. The CIC has several processing offices outside of Alberta. CIC's website says that said documents can be commissioned/notarized by lawyers, commissioners for oaths, with notation to see their authority in the province. Can a commissioner for Alberta take these type of documents? Your clarification would be greatly appreciated and I thank you so much.
  27. 2 Nancy 02 Oct

    It’s best to notarize, as typically commissioned documents will not be accepted out of province. In addition, section 15 of the Act states:
    15(1)  Persons may be appointed as commissioners for oaths in accordance with this Part to administer oaths and take and receive affidavits, affirmations and declarations in and for Alberta.

    Commissioning an affidavit for use outside Alberta appears, therefore, to be prohibited by the Act.

  28. 1 Nancy 02 Oct

    It’s best to notarize, as typically commissioned documents will not be accepted out of province. In addition, section 15 of the Act states:
    15(1)  Persons may be appointed as commissioners for oaths in accordance with this Part to administer oaths and take and receive affidavits, affirmations and declarations in and for Alberta.

    Commissioning an affidavit for use outside Alberta appears, therefore, to be prohibited by the Act.

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