New Notary Public and Commissioner for Oaths rules

Posted on 04. May, 2015 by in Uncategorized

Effective April 30, 2015, there are new rules governing Notaries public and commissioners for oaths in Alberta.  They will now both be governed under the Notaries and Commissioners Act with consequential amendments to the Alberta Evidence Act and the Guarantees Acknowledgement Act.

Important Changes:

  • Members of the Law Society of Alberta continue to be Notaries public and commissioner for oaths by virtues of their status.  They are not subject to expiration date rules.
  • All notaries can 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.
  • A notary public must 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”.
  • A notary public is required to endorse on the document the notary’s name, position and, if appointed, the date on which the appointment expires.

There is also a code of conduct applicable to Notary Public in Alberta:

  • 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.

Changes to the Guarantees Acknowledgement Act

A guarantor must appear before an active practicing lawyer to acknowledge that they have executed the guarantee. Non-lawyer notaries and students-at-law may not perform this function. The guarantor must sign a certificate in prescribed form in the presence of the lawyer. (Guarantees Acknowledgment Act – Section 3 Form) 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.

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.

Taken from: Alberta Law Society Practice Advisor article

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