BC Notaries Challenge to Lawyers’ Turf Dismissed

GeorgiaLeeLang025What is the difference between a notary public and a lawyer? While notaries are held to the highest standards of ethics, their training is far different than that of a lawyer. They must have an undergraduate degree with a B average, complete an 18 month course and write exams, and then do 6 weeks of practical training with the Society of Notaries.

As for lawyers, most have an undergraduate degree and are then required to complete 3 years of law school, followed by a 1 year articling program which includes a 9 week professional legal training course, and then pass the rigorous bar exam.

Interestingly, lawyers in British Columbia are automatically awarded the designation of notary once they are called to bar.

What services can notaries offer? Most commonly notaries take oaths on affidavits or statutory declarations, prepare residential real estate transfers, and mortgage documents, draft powers of attorney, and prepare simple wills.

It is the drafting of wills that has been the subject of discontent among notaries, who recently brought a court challenge, seeking to expand their will repetoire to include the preparation of wills that contain life estates and trusts.

In a court decision dated December 21, 2017, The Society of Notaries Public of British Columbia v. The Law Society of British Columbia 2017 BCCA 448, the BC Court of Appeal dismissed the notaries action. The restriction on notaries regarding wills is found in the Notaries Act RSBC 1996 c.344:

s. 18 “A member enrolled and in good standing may do the following:

(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;”

The Court of Appeal held that the legislation did not contemplate the drafting of wills that included trusts or life estates. They summarized and rejected the following argument made on behalf of the notaries:

“For example, they say that when a will-maker leaves real property to A subject to B having a life interest in that property, since A’s interest vests immediately, the property has been “distributed immediately” to A, notwithstanding the fact that A is not entitled to possession or use of the property until B dies. I am unable to accept this argument.”

This is not the first time notaries have sought to increase the services they may provide. In an earlier British Columbia decision, The Law Society of British Columbia v. MacDonald 2013 BCSC 1204, the Law Society successfully sued notary public Ms. Macdonald and sought an injunction against her for the unauthorized practice of law. She had prepared a will that included a trust and a life estate.

The expansion of legal services to professional who are not lawyers remains controversial, but where access to justice has become critical right across Canada, it is in the public’s interest to expand the expertise of those trained to provide legal assistance. With respect to the notaries, their court overtures have been rebuffed. Perhaps they should now focus on lobbying the provincial government to amend the Notaries Act and legislate additional training to accommodate expanded legal services.

In other jurisdictions, like Ontario, paralegals have been given enhanced status and are licensed and regulated through Ontario’s Law Society. They can practice independently, without supervision by a lawyer, if they meet the educational requirements and practice standards. Notably, licensed paralegals can represent clients in Small Claims Court, and handle matters under the Provincial Offences Act and summary convictions where the penalty is not more than 6 months imprisonment. They may also give advice and act for clients in residential tenancy matters and worker’s compensation matters.

My view is that the public needs more legal services from qualified individuals, not less. Lawyers who are good at what they do need not be threatened by notaries public or licensed paralegals.

Lawdiva aka Georgialee Lang

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