Jun

21

Commissioner of Oaths | Commissioner for taking Affidavits in Ontario vs. Notary Public

Commissioner of Oaths | Commissioner for taking Affidavits in Ontario vs. Notary Public

What is a Commissioner of Oaths? What about a Commissioner for taking Affidavits? What is the difference between a Commissioner and a Notary Public? These things tend to get confused, so let me break it down for you:

Commissioner of Oaths | Commissioner for taking Affidavits
A commissioner of oaths is the same thing as a commissioner for taking affidavits in Ontario. In a nutshell, they are individuals who can commission other people’s oaths. Here’s the typical situation. You want to purchase a house and prepare y0ur Will. Both situations require that you or a witness swear or affirm an Affidavit. An Affidavit is a document which the person making it swears or affirms that the contents are true. They do so in front of a Commissioner for taking Affidavits. Only certain individuals – by their trade, position, or through application – are entitled to commission Affidavits. Those individuals who are automatically Commissioners for taking Affidavits include:

  • members of the legislative assembly;
  • provincial judges and justices of the peace;
  • lawyers entitled to practice law in Ontario;
  • certain municipal clerks, deputy clerks, treasurers, administrative heads;
  • certain court clerks; and
  • certain officers employee of the government (e.g. Department of National Revenue).

Other than these individuals, anyone who is over 18 years old can apply to the Attorney General to be a Commissioner for taking Affidavits. These individuals (e.g. paralegals) must apply to the government and pay the prescribed fee (i.e. $75 for the first 3 years and then $50 for each 3 year duration after that). They receive a certificate and an outline of a stamp which they can take to have made. The stamp will indicate any geographic or temporal limits for these individuals – as per the Commissioners for Taking Affidavits Act.

If a lawyer is the Commissioner, he or she must provide their full name when commissioning. They need not stamp the Affidavit or Statutory Declaration, however. If a person has had to apply to be a commissioner (as above) and is commissioning the Affidavit or Statutory Declaration, then they MUST stamp the document to indicate their full legal name, confirmation that they are a commissioner for taking affidavits, jurisdiction they are licensed for, name of company they work for and expiry.

Notary Public
Notary Public is simply someone designated as such to give official recognition to certain government or private transactions or documents. As always, we start with the enabling legislation – in this case, the Notaries Act. That Act provides that an Ontario Barrister and Solicitor can automatically become a Notary Public. After getting called to the Bar, I simply had to get an embosser, fill out a form, and pay a one-time fee ($145) to the Ontario government.

Everyone else who wishes to become a Notary Public must apply. To become a Public Notary (in case you are not a lawyer), you need to be Canadian citizen. You also need to be available for examination and re-examination in regard to his or her qualification for the office of Notary Public by a judge of the Superior Court of Justice (in the area in which he or she resides). The latter must find that the applicant is qualified for the office and is needed for the public convenience in the place where the applicant resides and intends to carry on business. This is all covered under s. 2 of the Act. Finally, that person must obtain an embosser (about $60) and pay a one-time fee to the Ontario government ($110).

The power of the Notary Public is set out in ss. 2(2) and 3 of the Act. Generally, if the Notary Public is not a lawyer, then he or she may have restrictions imposed upon them.

Some of the types of transactions and documents which a Notary Public can assist you with includes:

  • Administering or commissioning oaths
  • Taking affidavits, affirmations, acknowledgments, or declarations
  • Certifying documents as true copies
  • Assisting with certain immigration documents (e.g. passport application, permanent residence card application, consent to travel documentation, etc.).

Section 5 of the Act provides that a Notary Public need not affix their seal to an oath, affidavit or declaration for it to be valid.

Overall, a Notary Public has the same powers as a Commissioner for taking Affidavits, but can actually do more things (e.g. by certifying true copies of original documents used in private commercial transactions).

Remember: if you need to have a document commissioned or notarized, make a post on Dynamic Legal Forms.

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