Do I Need a Notary or a Commissioner of Oaths?
Do I Need a Notary or a Commissioner of Oaths? Understanding the Difference
What's the Difference Between a Notary and Commissioner of Oaths?
The primary difference between a notary public and a commissioner of oaths lies in their scope of authority, qualifications, and the types of documents they can handle.
A notary public is a legal professional appointed by a provincial government with the authority to perform a wider range of legal functions. They can witness signatures, administer oaths, certify copies of documents, and in many cases, prepare legal documents like deeds and contracts. Notaries can also authenticate documents for use in international contexts.
A commissioner of oaths has more limited authority, primarily focused on administering oaths and taking affidavits, statutory declarations, and other sworn statements. They cannot authenticate documents for international use or prepare legal documents.
Let's explore these differences in more detail to help you determine which professional you need for your specific situation.
Provincial Variations in Canada
It's important to note that notary requirements vary significantly across Canadian provinces:
British Columbia
- Notaries are appointed by the Supreme Court for life
- Must be members of the Society of Notaries Public of British Columbia
- Extensive training and qualification process
Quebec
- Notaries must have a bachelor's degree in civil law
- Also require a master's degree in notarial law
- Governed by the Chambre des notaires du Québec
- Rigorous legal background and specific training requirements
Ontario
- The Notaries Act regulates the practice of notarization
- Practicing lawyers and paralegals in good standing with the Law Society of Ontario (LSO) can apply for a lifetime notary public appointment
- Application process involves:
- Submitting a request through the Official Documents Service
- Paying a one-time fee of $145
- Receiving a Certificate of Appointment upon approval
- Authorization to perform notarial acts such as certifying document copies and administering oaths
- The Notaries Act enables all fee-paying licensees and those with fee exemptions to serve as notaries in Ontario
- Licensees who intend to charge fees for notary services must belong to the 50% or 100% fee-paying category
- When acting as a notary public, licensees cannot provide legal advice unless retained and the situation warrants such guidance
Ontario notaries hold all the same powers as a commissioner for taking affidavits, plus additional authority to certify document copies as true originals, witness signatures, and attest document execution
Other provinces have various prerequisites, including a legal background or specific training, with licenses granted for set terms and subject to renewal.
When Do You Need a Notary Public?
Step-by-Step Guide to Determining if You Need a Notary
- Identify your document type
- Real estate transactions (deeds, mortgages, title transfers)
- Power of attorney documents
- International documents requiring apostille certification
- Advanced healthcare directives or living wills
- Certified copies of important documents
- Check document requirements
- Look for language requiring "notarization" or "notarial acts"
- Review any instructions from the receiving agency
- Check if the document needs to be used internationally
- Consider the legal importance
- Documents with significant legal or financial consequences
- Documents that transfer rights, property, or authority
- Documents that need additional fraud prevention
- Verify jurisdiction requirements
- Different provinces have different rules about what must be notarized
- International documents have specific requirements
- Consult the receiving organization
- Contact the institution that will receive your document
- Ask specifically about notarization requirements
Common Documents That Require a Notary
- Real estate deeds and mortgages
- Wills and trusts (in some jurisdictions)
- Powers of attorney
- Motor vehicle title transfers
- Adoption papers
- International business contracts
- Advance medical directives
- Certified copies of documents for international use
Costs and Fees: Notary vs. Commissioner of Oaths
The cost difference between these professionals can influence your decision, especially for multiple documents.
Notary Public Fees:
- Typically range from $25-$50 per signature in Canada
- Mobile notary services may charge $75-$150 or more
- Additional fees may apply for travel, after-hours service, or complex documents
- Some provinces have recommended fee guidelines
Commissioner of Oaths Fees:
- Generally lower, ranging from $10-$30 per document
- May be free in some government offices for certain documents
- Less likely to charge travel fees
- Often have standardized fees set by provincial regulations
Legal Protections and Limitations
Understanding the legal protections each professional provides can help you make an informed decision.
Notary Public Protections:
- Reduces fraud through identity verification
- Creates legal evidence of document execution
- Most carry errors and omissions insurance
- Subject to rigorous provincial oversight
- Creates permanent record in notary journal
Commissioner of Oaths Limitations:
- Generally less stringent verification requirements
- May not maintain detailed records of transactions
- Limited authority for international documents
- Typically less regulated than notaries
- May not carry professional liability insurance
Can a notary public also serve as a commissioner of oaths?
Yes, in many Canadian jurisdictions, notaries public automatically have the powers of a commissioner of oaths, but not vice versa. A notary has broader powers that encompass and exceed those of a commissioner of oaths. In Ontario, for example, notaries hold all the same powers as commissioners for taking affidavits, plus additional authority.
Do I need an appointment to see a notary or commissioner of oaths?
It depends on the professional and setting. Bank notaries often require appointments, while notaries in law offices may take walk-ins. Mobile notaries always require scheduling. Commissioners in government offices may have specific hours for such services.
Can I use online notary services instead of visiting in person?
Some provinces now allow remote online notarization where you can connect with a notary via video conference. However, this isn't universally accepted for all document types or in all jurisdictions. Commissioners of oaths typically require in-person appearances.
What identification do I need to bring?
Both professionals typically require government-issued photo identification such as a driver's license, passport, or provincial ID card. Some may require two forms of ID for certain document types
Can notaries or commissioners refuse to serve me?
Yes, both professionals must refuse service if they suspect fraud, if you appear to be under duress or lacking capacity to understand what you're signing, or if proper identification isn't provided. Notaries may also refuse service for documents in languages they don't understand.