When articled students in British Columbia (and other jurisdictions in Canada) are called to the bar, they are given a notarial seal. But what should these seals be used for? What obligation do lawyers have to use their notarial seals judiciously? Does one have an obligation to examine a document before affixing your seal, and by sealing a document are you lending the credibility of your name and professional reputation? This article provides brief answers to these questions.
Note that this article focuses on notarial seals i.e. a press, normally made of steel, used to imprint an emblem on a piece of paper by deforming the page. This article does not consider seals that are used to validate contracts not supported by consideration (often red sticky wafers), corporate seals, Architect’s seals, government seals, or other seals.
Lawyers in British Columbia are entitled to act as notaries
Section 14(3) of the Legal Profession Act, S.B.C. 1998, c. 9 establishes that lawyers in British Columbia can perform the duties of a notary public in British Columbia:
14(3) A practising lawyer is entitled to use the style and title of "Notary Public in and for the Province of British Columbia," and has and may exercise all the powers, rights, duties and privileges of the office of notary public.
The tasks lawyers use their notarial seals for are generally done in their capacity as notaries or commissioners of oaths.
The duties of a notary public
Generally, a notary public is a person who is authorized to administer oaths, take affidavits, and execute, authenticate or certify documents or copies of documents as true copies.
Section 18 of the Notaries Act, R.S.B.C. 1996, c. 334 indicates what notaries are authorized to do in British Columbia:
18 A member enrolled and in good standing may do the following:
(a) draw instruments relating to property which are intended, permitted or required to be registered, recorded or filed in a registry or other public office, contracts, charter parties and other mercantile instruments in British Columbia;
(b) draw and supervise the execution of wills…
(c) attest or protest all commercial or other instruments brought before the member for attestation or public protestation;
(d) draw affidavits, affirmations or statutory declarations that may or are required to be administered, sworn, affirmed or made by the law of British Columbia, another province of Canada, Canada or another country;
(e) administer oaths;
A lawyer, acting as a commissioner of oaths or notary, has the authority to take the oath of a person swearing an affidavit or statutory declaration. The person swearing the affidavit or statutory declaration appears before the lawyer and swears to the truth of the contents of the document, and when that document is witnessed by the lawyer, the document is “notarized” and becomes a "sworn document". The document may then be offered as evidence of the facts contained in it.
A lawyer notarizing a document a need not read the contents of the document, and may take an oath in relation to a document written in a language the lawyer does not understand. In this instance, the notary is not making any statement about the veracity of the contents of the document, but is simply confirming that the person who swore the document swore that the contents of the document were true at the time of swearing.
However, when a notary certifies a document as a true copy, the notary is making a representation as to the quality of the certified copy. The common procedure is for the notary to have the original in hand, make the photocopy, and then certify the photocopy as a true copy.
What a notarial seal should not be used for
Notarial seals should not be used to seal documents as deeds or as contracts not supported by consideration, in an attempt to make those documents valid. Sealing such documents must be done by the person executing the document i.e. the party to the contract or the person executing the deed, and is to be a personal act of that person:
To be of any effect the application of a seal must be the conscious and deliberate act of the person applying the seal. It is his personal seal and he should apply it himself, or it must at least be applied in his presence and with his full knowledge and approval. The casual application of a seal by a secretary after the document has been signed is not sufficient.
Glens Falls Insurance Co. v. Tom Peters Ltd. (1957) 10 D.L.R. (2d) 459 (Ont. H. C.)
Since the seal is that of the lawyer, it should not be used by another person to seal a document.
When must notarial seals be used?
A notarial seal may be used when an oath is sworn before a lawyer, or the lawyer certifies and states that he or she is certifying a copy of a document as a true copy. However, these tasks can be done without using a seal. It is enough for a lawyer to indicate that he or she is a commissioner by writing his or her name and office clearly on the document.
Therefore, seals are not mandatory for documents notarized in British Columbia for use in British Columbia. However using your seal when notarizing documents is good practice because it clearly indicates that it was you who notarized the document.
Seals may also be used when executing deeds under a power of attorney. Section 7 of the Power of Attorney Act, R.S.B.C. 1996, 370 states the following:
7 A deed executed by an attorney under the seal of the attorney on behalf of a donor, whether an individual or corporation,
(a) is binding on the donor if it comes within the scope of the attorney's authority, and
(b) is of the same effect as if it were under the seal of the donor.
Documents to be used in other jurisdictions
In some cases, documents produced in British Columbia will only be recognized as valid in other jurisdictions if they bear the seal of a person authorized to notarize documents.
Furthermore, some foreign jurisdictions will only recognize documents notarized in British Columbia if the notary's seal and signature have been authenticated by the Lieutenant Governor of British Columbia.
To obtain such authentication, lawyers should provide the Law Society with a sample of their signature and an impression of their notarial seal on letterhead paper. The Law Society will then send the signature and seal impression, along with a certificate verifying the lawyer’s status as a member of the Law Society in good standing, to the Order in Council administration office in Victoria.
Once the lawyer’s signature and seal are on file in Victoria, the lawyer may send all notarized documents requiring authentication to the Ministry of Attorney General, Order in Council Administration, in Victoria. A fee (approximately $30) is charged for each notarized document requiring authentication. A processing time of approximately one week should be allowed for.
Considerations before using a notarial seal
Lawyers should be cautious if they are asked to affix their notarial seal to a document without being asked to take an oath or certify that the document is a true copy of another document. Except in these cases there is likely no good reason to affix a seal.
Notarial seals lend an air of importance to documents and persons planning frauds or other scams may seek to have seals affixed to documents to make them appear legitimate. The Law Society of British Columbia has investigated complaints involving lawyers affixing seals to suspicious documents when there was no apparent reason for doing so. In one case the documents were brought to the attention of the Law Society by the British Columbia Supreme Court and the lawyers' use of their seals became the subject of a professional conduct investigation.