Since lawyers and notaries are both legal professionals, many people may ask themselves if there are rules for when they should see a lawyer and for when they should see a notary. In fact, the law specifically mentions the situations in which it is required to use the services of a lawyer or a notary. (See the questions “When must I see a lawyer?” and “When must I see a notary?”)

Apart from these situations, for example, if a person wants a legal professional’s advice about buying a condo abroad, the choice between a notary and a lawyer is a personal one and depends on the person’s needs and preferences, as well as the references and availability of the notaries and lawyers in question.

A lawyer is a professional who is specialized in legal matters. Anyone who has a legal problem can thus decide to meet a lawyer to get advice on how to solve the problem.

Lawyers can help clients in many ways. Their main role is that of a mandatary, i.e., a person who acts on behalf of another person in order to carry out tasks of a legal nature: for example, sue someone, negotiate a contract, or sign a contract. To find out more about mandataries, read our Infosheet entitled Mandates.

Lawyers also act as legal advisors, who inform their clients about their best possible options, after taking into account the relevant legal rules. As legal advisors, lawyers can provide advice on all sorts of questions, like how to end a situation of harassment or how to start a business. Lawyers who act as legal advisors can be experts in a particular area, like environmental law, civil liability, criminal law, family law, etc.

Finally, more and more lawyers are working in alternative dispute resolution. A lawyer can act as a mediator and help two people resolve their dispute, rather than asking a judge to solve it. To find out more about alternative dispute resolution, visit our section called "Justice participative" (this section is currently available only in French).

Generally, people can always represent themselves and they never have to see a lawyer, even if they want to go to court. Only some persons, for example, companies, partnerships, and persons who manage the property of someone else (like receivers, the public curator, liquidators, etc.) must normally be represented by a lawyer before courts. It is even generally impossible to be represented by a lawyer before some courts, like the Small Claims Division of the Court of Quebec.

But, if people decide not to see a lawyer, they must themselves carry out the legal steps necessary to deal with their situation. A non-lawyer cannot represent them before a court or give them legal advice (except, in some cases, a notary can represent people before a court or give them legal advice). This is because the law says that these activities are reserved for members of the professional order of lawyers, called the Barreau du Québec (Bar). A non-lawyer who carries out these activities could be sued by the Bar for illegally practising the profession of a lawyer.

A non-lawyer can only represent someone before a court if the law allows it. For example, the law says that when it is impossible for a person to go before the Régie du logement (Rental Board) or the Small Claims Division of the Court of Quebec, that person can be represented by a spouse, a friend, or a relative by blood, marriage, or civil union.

Writing a written procedure, like a motion, in order to file it at court, is also an activity reserved for lawyers (and, in some cases, for notaries). If a person chooses to not write the procedures for her case herself and to have them written by a non-lawyer, the court will still accept the procedures. But the non-lawyer could be sued by the Bar for illegally practising the profession of a lawyer.

Clients can expect their lawyers to have integrity and to be competent, loyal, independent, and impartial. Lawyers must only accept a professional mandate if they have a reasonable level of knowledge and proficiency in the area. Lawyers must also build a relationship of trust with their clients, respect professional secrecy, and not place themselves in a situation where their personal interest will be in conflict with the interests of their clients.

If requested by a client, a lawyer must provide the client with an approximate cost of her services. The lawyer must also make sure that the client has all the information needed to understand her bill for legal fees.

To find out more about the recourses available to people when their lawyers do not fulfill their ethical obligations, read our Infosheets entitled Professional disciplinary committees: The complaint process and Conciliation and arbitration of professional fees.

Like any other person, a lawyer has the duty to act prudently and diligently toward others, in a way that doesn’t harm others. Therefore, a lawyer is liable toward a client when she fails to fulfill this duty and her failure harms the client.

Keep in mind, though, that the lawyer does not have to guarantee the result sought by the client. For example, this means that a client cannot sue his lawyer because the lawyer lost the case or did not return his calls, as long as the lawyer acted like a diligent and prudent lawyer and used reasonable means to do so.

But, in some cases, like the obligation to respect professional secrecy and the obligation to act before the recourse is prescribed (expired, past the deadline), lawyers have a stricter duty. They are liable to their client if they do not fulfill the obligation and, as a result, the client suffers harm.

For example, Julio wants to sue a radio show host for defamation. Under the law, a person has one year to sue another person for defamation. If Julio goes to a lawyer after eleven and a half months and the lawyer accepts the mandate, the lawyer must file the procedures in time. Otherwise, he will be liable to Julio because Julio would lose his recourse against the radio show host because his lawyer did not act in time.

The relationship between a lawyer and her client results from a contract. To find out more about civil recourses (which ask for money) against a person with whom you entered into a contract, read our Infosheet entitled Contractual liability.

A notary is both a legal professional and a public officer. Notaries may be consulted in many situations.

First of all, notaries can act as legal advisors in many areas, like real estate law, business law, successions law, family law, and financial planning. They can write all documents related to these areas. For example, you can ask a notary to write a will, a cohabitation contract, a business contract, a mandate given in anticipation of incapacity, etc.

These documents can, however, be perfectly valid even if they are not made before a notary. But, the document that you write yourself may not properly express your intentions, you may forget to include important points or the way that you drafted your document (the “form”) may not be legally valid. Remember that the notary is an expert in making these documents and can advise you on all of these points.

Notaries are also public officers. As public officers, they can write and keep documents which are considered “authentic.” The content of an authentic document is difficult to attack. When the original of an authentic document is kept by the notary, the document cannot be lost or changed. Furthermore, these documents can easily be tracked. For example, if the notary retires, the document can still be found. There are other advantages to having an authentic document. To learn more about the advantages specifically relating to wills made by a notary, see the question “What is a notarial will?” in our Infosheet entitled Wills.

Notaries can also act as mediators. (To find out more about mediation, visit our section called "Justice participative" - this section is currently available only in French). In uncontested cases, a notary can represent a person before a court. For example, a notary could represent a person who wants to be named the tutor for his orphan nephew, if no one contests this.

Finally, notaries can act like a type of court, if it is an uncontested case and if there are no opposing interests at stake. For example, you can ask a notary to homologate a mandate given in anticipation of incapacity. The law also says that, spouses in a civil union, who have no minor children, can ask a notary to dissolve their civil union (the equivalent of a divorce for married couples).

Notaries are indispensable for any thing that requires a notarial act, which is an official document written by a notary. Generally, the notary keeps the original and gives an official copy to his client. In this case, the notarial act is called a notarial act “en minute.”

When the law says that a document must be notarial, it’s not kidding around! If a document does not fulfill this condition, the contract or the consent that it contains could be considered invalid.

Here are some documents that must be notarial:

• A marriage contract or a contract of civil union and their modifications;
  
• A gift of immovable property;
  
• A gift of movable property (unless the property is given immediately to the person receiving the gift);
  
• The renunciation of certain kinds of trusts;
  
• A hypothec on immovable property (for e.g., land or a building);
  
• A declaration of heredity (list of potential heirs when there is no will).

Note that a contract of sale of immovable property, like land or buildings, does not legally have to be notarial. However, almost everyone who sells or buys immovable property in Quebec does so using a notarial act. This allows people to have an authentic version of the contract of sale that cannot be lost. A notary can also do the necessary searches of the previous owners to make sure that the seller, as required by law, can guarantee to the buyer that there aren’t any problems with the title of the property. Finally, since, in most cases, the sale is accompanied by a hypothec and the hypothec must be notarial, many people decide to kill two birds with one stone.

Yes. In some cases, the law says that a person must express her consent by a notarial act or a “judicial declaration which is recorded”, i.e., a declaration made in a legal procedure that the judge accepts and refers to in her judgment.

The most common cases are:

• The renunciation of a family patrimony;
  
• The renunciation of a succession;
  
• The late acceptance of a succession (i.e., the acceptance of a succession that a person first refused, but then no one else ended up accepting the succession).

Notaries have ethical obligations. They must act with honesty, frankness, and objectivity. They must build a relationship of trust with a client; and, they must not get involved in any of the client’s affairs in which they are not experts. Notaries must respect professional secrecy; and, they must avoid conflict of interest. In particular, if a notary is in a situation in which he is advising several people and he has a tendency to favour some of them, he must cease to act. A notary cannot be a notary and a lawyer at the same time. Notaries must explain to clients the scope of the services that they will provide, for example, the number of hours the work will take and the cost. Notaries must also refrain from working when they are in a condition or state (like drunkenness!) that can compromise the quality of their services.

As for civil liability, notaries can be liable when they don’t perform the requested service with the prudence and diligence of a reasonable notary. Notaries must use reasonable means to perform the requested service, but they don’t have to guarantee the result.

For example, Judith is going to see Jasmine, a notary, to get advice about a company in which she wants to invest. Jasmine, like a prudent and diligent notary, reads the company’s prospectus, examines its financial statements, carries out a search with the Autorité des marchés financiers, consults her colleagues, and concludes that it is a serious company with an excellent investment rating. Jasmine has used reasonable means to give good advice to Judith; thus, she will not be liable if, later on, a company director runs off with the savings that Judith and other shareholders invested in the company.

Notaries, however, have a stricter obligation when someone asks them to write an authentic act, for example, a hypothec. It is no longer sufficient for notaries to have used reasonable means to ensure that all of the formalities were respected. A notary must make sure that all of the formalities have been respected and that the act is authentic; otherwise, the notary will be liable.

The law sometimes says that a person must take an oath before signing certain documents or testifying. It is considered that taking an oath gives more weight and more credibility to the facts that the person is reporting. The commissioner for oaths is a person who has the power to administer an oath to another person. The signature, the number, and, sometimes, the seal of the commissioner for oaths establish that the formality of taking an oath has been respected.

A commissioner for oaths can only administer an oath in the judicial district where he is allowed to act as a commissioner for oaths. A commissioner cannot charge more than $5 for administering an oath.

Note that the role of a commissioner is to verify that a person actually took an oath before signing the document. The commissioner is not responsible for the truth of the statements made in the document!

Because of their profession, certain people are automatically commissioners for oaths. These professions include:

• Secretaries of the National Assembly;
  
• Clerks and deputy-clerks of courts;
  
• Lawyers, notaries, and justices of the peace;
  
• Municipal mayors, clerks, and secretary-treasurers (but only within the boundaries of their municipality).

Officers of the Canadian Armed Forces, holding the rank of major or a higher rank, can also administer oaths, but only to members of the armed forces.

Quebecers who are staying abroad and need to take an oath for something can also go and see a delegate of Quebec, a consul of Canada, or a judge of a superior court of another province or British territory. They can also see the mayor or chief judge of a city, town, or borough, provided that the statement is made under the official seal of the place.

Apart from the people who are automatically commissioners for oaths, other people, for practical reasons, can become commissioners for oaths. They need to receive permission from the Ministry of Justice of Quebec. This permission is given for 3 years and is renewable. For example, the administrative assistant of a lawyer may want to become a commissioner for oaths; a social worker who helps tenants complete applications to resiliate (cancel) a lease because of conjugal violence may also become a commissioner for oaths, because this application must be made under oath.

To become a commissioner for oaths, you must:

• Be a Canadian citizen and a Quebec resident;
  
• Never have been found guilty of a criminal offence; or, if you were found guilty, you must have been pardoned; and
  
• Complete an application.

Of course, it makes sense that an application to become a commissioner for oaths... must itself be made under oath!

Obviously, just because a commissioner for oaths has the power to administer an oath to other people doesn’t mean that they have to do it. They can have practical or ethical reasons to refuse to administer an oath. Moreover, the law says that a commissioner cannot administer an oath to a close family member (father, mother, brother, sister, child) or a spouse.

Whenever you have to take an oath before signing a document! As for witnesses, the court clerk administers an oath to them before their testimony.

There are many types of documents that must be signed by a person who has taken an oath. When the document is a form, the necessity of taking an oath will be mentioned in it. Here are some examples of documents that must be made under oath:

• Affidavit (statement, made under oath, that supports a legal procedure);
  
• Request for an attestation for the purpose of resiliating (cancelling) a lease on grounds of violence or sexual assault.
  
• Motion to cancel the seizure of a car by a police officer;
  
• Request to revoke a judgment when you did not have an opportunity to present evidence;
  
• Application to the SAAQ to obtain a restricted licence;
  
• Voluntary deposit;
  
• Asking for a part of the salary of a debtor whose salary has been seized;
  
• Request to be exempted from paying support directly to the Ministry of Revenue, when the ex-spouses agree to this;
  
• Etc.

Not necessarily! Commissioners for oaths can’t automatically be guarantors for a passport application.

People often confuse guarantors and commissioners for oaths because passport applicants who don’t have a guarantor must provide a statement under oath saying that they don’t have a guarantor... to provide this statement, they have to go see a commissioner for oaths!

A guarantor must fulfill certain conditions, like having known you for 2 or more years. Unlike commissioners for oaths, guarantors must offer you this service for free.

To find out more about guarantors and passport applications, read our Infosheet entitled Canadian passports for adults and children.