Are Notaries in Canada and the U.S. Different?

Key Takeaways

• Notaries build trust by verifying identities, confirming document authenticity, and preventing the entry of coercion or fraud into the signing process.
• Both Canadian and U.S. notaries can witness signings, administer oaths, and certify documents, but they cannot offer legal advice or draft legal documents (except in British Columbia and Québec for Canada).
• Although state-specific regulations exist, basic requirements for notary applicants in the U.S. include being at least 18 years old, legal residency in their state, and no criminal record.
• In British Columbia and Canada, notaries have more authority due to the requirements being more stringent.
• Non-lawyer residents of Ontario must prove notarization is essential to their job to be given a notary appointment.

Canadian notaries are similar to their U.S. counterparts, generally restricted to administering oaths, witnessing signatures on affidavits and statutory declarations, providing acknowledgments and certifying true copies. Notarial service is distinctly different from the practice of law and giving legal advice and preparing legal instruments is forbidden (with the exception of the Province of British Columbia and Québec).

In the U.S., the exact qualifications on who can become a notary differs from state to state but anyone can apply to be a notary. In general, applicants must be 18 years old and a legal resident of the state with no criminal record.

In Ontario:

• a notary public, has all the powers of a commissioner for taking affidavits and, can verify that signatures, marks and copies of documents are true or genuine;
• a commissioner for taking affidavits (also referred to as a commissioners of oaths), can take affidavits or declarations by asking you to swear or affirm that what is in a document is true; and
• lawyers and paralegals are automatically a commissioner for taking affidavits and can receive a lifetime appointment as a notary public after being licensed by the Law Society of Ontario (“LSO”) and be in good standing with the LSO.

Non-lawyers and non-paralegals may also apply to become a commissioner for taking affidavits or a 3-year term as a notary. They must be eligible to work in Canada and demonstrate that notarizing documents in Ontario is a required part of their job (e.g., an Ontario corporation taking part in trade or commerce outside of Ontario). Notary appointments are not granted to people who only require the powers of a commissioner.

In British Columbia, notaries are appointed for life by the Supreme Court of British Columbia. They also exercise far greater power as they are able to dispense legal advice and draft public instruments.

In Québec, notaries are fully licensed lawyers. Notaries may: draft and prepare legal instruments, 

• provide complex legal advice;
• represent clients (out of court) and make appearances on their behalf;
• act as arbitrator, mediator or conciliator; and
• act as a court commissioner in non-contentious matters.