What’s the difference between a notary public and a commissioner?

June 12, 2017 9:59 pm Published by Leave your thoughts

If you have been asked to have documents be “notarized”, you might need to sign them in front of a notary public, a lawyer or a commissioner. Commissioners are also called Commissioners for Taking Affidavits. In BC, notaries are often called BC Notaries, to distinguish them from notaries in other jurisdictions.

Read here for information on the difference between a notary public and a lawyer in BC.

So what’s the difference between a BC Notary and a Commissioner?

There are two main differences between Commissioners and BC Notaries: the scope of work they are entitled to do, and the people they are allowed to work for.

What is a Commissioner?

A Commissioner is someone who can put you under oath, or take your signature under a solemn declaration. So if you have a document that is required for court, or for certain government or other legal purposes, you may be required to sign those documents in front of a Commissioner.

In BC, some people are automatically Commissioners because of their profession. A BC lawyer and a BC Notary, for example, are automatically Commissioners for Taking Affidavits.

What is a BC Notary?

A Notary Public, in BC, is a legal professional governed by the Society of Notaries Public of British Columbia. BC Notaries are able to take your signatures on affidavits and statutory declarations, the same way Commissioners do, but they can also help clients with more legal support, such as other forms of notarial work, residential conveyancing, making Wills, Powers of Attorney or Representation Agreements.

Who Notaries and Commissioners serve

BC Notaries and lawyers can act as Commissioners for anyone in the public realm.

The Provincial Government also appoints certain people to act as Commissioners. These Commissioners have very specific restrictions on their services, and cannot sign all documents; they are also generally not allowed to sign documents for the public at large unless their commission allows for that work.

Scope of Work

This section from BC’s Evidence Act RSBC 1996, c. 124 sets out the powers of a Commissioner:

Powers of commissioner

59 Subject to section 61 and to any restrictions, exceptions, terms or conditions set out in an order under section 56, a commissioner for taking affidavits for British Columbia may, in or out of British Columbia, administer oaths and take affidavits, declarations and affirmations concerning

(a) any cause, proceeding, matter or thing before the Supreme Court or any other court in British Columbia;

(b) any matter in connection with which an oath, affidavit, affirmation, solemn declaration or statutory declaration is permitted, authorized or required by law to be sworn, affirmed, declared or made.

In many other provinces, and in the United States, notaries and commissioners often do the same kinds of work: they put people under oath, or take their solemn declarations. Notaries might also do additional notarial work, such as certifying copies of documents to be true, or verifying your identity.

In BC, because notaries have a wider scope of powers, BC Notaries do quite a bit more than Commissioners.

BC Notaries can help you make Wills, Powers of Attorney or Representation Agreements; they can help you buy or sell property or businesses; they can also perform other notarizations, such as certifying documents to be true, authenticating documents or verifying your identity.

The Notaries Act sets out the powers of a BC Notary:

Rights and powers of members

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

(i) by which the will-maker directs the will-maker’s estate to be distributed immediately on death,

(ii) that provide that if the beneficiaries named in the will predecease the will-maker, there is a gift over to alternative beneficiaries vesting immediately on the death of the will-maker, or

(iii) that provide for the assets of the deceased to vest in the beneficiary or beneficiaries as members of a class not later than the date when the beneficiary or beneficiaries or the youngest of the class attains majority;

(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;

(e.1) draw instruments for the purposes of the Representation Agreement Act;

(e.2) draw instruments relating to health care for the purposes of making advance directives, as defined in the Health Care (Consent) and Care Facility (Admission) Act;

(e.3) draw instruments for the purposes of the Power of Attorney Act;

(f) perform the duties authorized by an Act.

If you need the documents to actually be signed in front of a Commissioner (instead of a lawyer or BC Notary), please make sure you tell your BC Notary or lawyer that, so they use the right form of signatures.

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This post was written by Linda Caisley