For documents to be valid and enforceable, they often require a witness to their execution or for the person signing to swear, declare or attest to the contents of the document before a commissioner of oaths or notary public. Lawyers in this province are often called on to be a witness or act as a commissioner or notary public – are you following best practices in carrying out these tasks?
When you witness, commission or notarize a document you are certifying that the person executing the document is swearing, attesting or declaring that the contents of the document are true and/or they are agreeing to what is stated in the document. As such, it is important that the signatory understands what the document is and has a chance to review the entire document before they sign it. This means that you should be alert to anything that may impede the person’s ability to comprehend the document, such as their reading ability, language proficiency and capacity.
Not only can careless execution of a document lead to client complaints and negligence claims, but it can have other negative consequences such as a deal or agreement being rendered void if the document turns out to be different than what the person thought they were signing (non est factum). You may also be called before a court or other tribunal to explain the circumstances surrounding how the document was executed as well as your role in signing as a witness or acting as a commissioner of oaths or notary public.
It is also a good idea to review the document that is being signed as there is precedent for lawyers to be censured by the court where they have acted as a notary public for a person signing a document that was clearly contrary to Canadian law. On a similar note, complaints and negligence claims relating to witnessing, commissioning and notarizing documents can arise out of obligations under the Code of Professional Conduct which prohibits lawyers from doing anything that they know or ought to know assists or encourages dishonesty or fraud (section 3.2-7). The Code further prohibits lawyers from attempting to deceive a tribunal or influence the course of justice by offering false evidence, misstating facts or presenting or relying on a false or deceptive affidavit (section 5.1-2).
In addition, section 138 of the Criminal Code sets out offences relating to affidavits and statutory declarations. That section includes a prohibition on using an affidavit or statutory declaration knowing it wasn’t sworn or declared by the affiant or declarant.
Over the course of your career, you will likely be a witness or act as a commissioner of oaths or notary public in the execution of hundreds, if not thousands, of documents and it is impossible to remember the details of every transaction. Following best practices can help mitigate the risks and make it easier to answer any questions that may arise in the future about how a document was signed. Recommended practices include the following:
If you have questions about the best practices to follow when signing as a witness or acting as a commissioner for oaths or a notary public, feel free to contact the Director of Practice Management. For questions with respect to becoming or being a commissioner of oaths or notary public, contact the Department of Justice and Public Safety.
Client Identification and Verification Requirements: Rule 16 (Law Society Rules)
Dishonesty, Fraud by Client or Others: section 3.2-7 (Code of Professional Conduct)
Advocacy: section 5.1-2 (Code of Professional Conduct)
Offences Relating to Affidavits: section 138 (Criminal Code)
(Posted: February 21, 2023)