A NEW LAW THAT GETS PEOPLE TALKING: THE ACT TO MODERNIZE THE NOTARIAL PROFESSION AND PROMOTE ACCESS TO JUSTICE
Faced with the evolution of the practice of law and particularly the place that technology takes in daily life, the Government of Québec adopted, on October 24, 2023, a law whose name is quite revealing of its objective: the Act to modernize notarial practice and promote access to justice (“Bill 34“). Except for certain provisions that are not yet in force, Bill 34 came into force on the same day.
The following is a summary of the main changes made under Bill 34:
I. MODERNIZATION OF NOTARIAL PRACTICE
Notarial deeds on technological platforms
One of the main objectives of Bill 34 is to make permanent the signing of notarial deeds on a technological medium, which until the adoption of this law was authorized under decrees renewed annually in the context of a health emergency. Thus, the Notaries Act (CQLR c. N-3) (“Notaries Act“) has been subject to a few amendments to reflect this push of the notarial profession into the digital age.
Not only will notarial deeds executed on a technological support be authorized by law, but they will also have to be signed in this way as soon as the provision to this effect comes into force by the year 2025. This new law also provides for the end of “good, old” paper deeds by 2025.
Bill 34 will not prohibit paper deeds but will greatly restrict their use. Some exceptions will be made in situations where the use of technological support is not appropriate.
It is also envisaged that minutes executed on paper can be transferred to a technological medium and then be destroyed.
Digital Central Registry
With a view to modernizing notarial acts and the permanent nature of digital acts, notarial records will be grouped together in a single central digital registry, which will be created and administered by the Chambre des notaires du Québec until the technological deeds are transferred to the Bibliothèques et Archives nationales du Québec.
Remote notarial deeds
It should be remembered that since April 2020, measures were put in place by the Chambre des notaires du Québec so that notarial deeds could be signed not only using technological processes, but also remotely. The execution of notarial deeds such as deeds of hypothec, deeds of sale or declarations of co-ownership, many of which have been concluded remotely for the past three years, is now, following the amendments to the Notaries Act, an “exceptional” measure.
In particular, section 46 of the Notaries Act is amended to add the following:
- […] The notary may, exceptionally, if the circumstances so require and it can be done with respect for the rights and interests of the parties, authorize a party or a witness who so requests to sign the deed remotely. This authorization may be revoked at any time.
Bill 34 therefore tightens the framework within which remote signatures are executed, so that they do not become a norm. The use of the word “exceptional” implies the notary’s judgment on the appropriate circumstances for using this method of signing, considering the needs of the parties involved and the notary’s duty as a public officer.
The Chambre des notaires has clarified, in guidelines for its members, its interpretation of the conditions allowing the use of remote signatures:
(i) The circumstances so require
Circumstances justifying the use of remote signing include:
- a party is located a great distance from an available notary or a notary with the expertise required to meet their legal needs;
- a person’s health conditions, health conditions, functional restrictions or limitations, or climatic conditions do not permit travel;
- a situation beyond the control of the signatories and the postponement of the signature can create an issue in the rights and interests of the other party.
However, the Chambre des notaires specifies that the fact that one or more parties who routinely sign notarial deeds remotely does not constitute a situation requiring remote signing. A party who does not wish to travel to sign a deed may resort to other means such as the use of a power of attorney or a resolution in the case of a legal person, or the use of a delegated notary located near a party requesting remote signature.
(ii) A party requests it
The notary cannot impose the remote signature on the parties. It is the party who must make such a request, and the circumstances justifying the use of this procedure must be specific to a party and not to the notary.
(iii) Respecting the rights and interests of the parties, and
(iv) Exceptional nature
Since the remote signature of the parties cannot be set up as a system, a notary who wishes to advertise himself as offering this service must specify in the same message its exceptional nature and the need to comply with all the conditions set out in the Notaries Act.
Bill 34 also gives the board of directors of the Chambre des notaires the latitude to restrict the use of remote closing of deeds by allowing it to be limited or even prohibited for certain acts or circumstances.
Restriction of notarial deeds
Section 15 of the Notaries Act, which provided before Bill 34 that only a notary may, on behalf of another person, receive documents that must be in notarial form, is now drafted in a more restrictive manner. That section now reads as follows:
Subject to the provisions of sections 15.1 and 16, no person other than a notary may, on behalf of another person:
(1) prepare or draft acts which, under the Civil Code or any other legislative provisions, require execution in notarial form;
[…]
15.0.1 Unless otherwise provided for by law, no person other than a notary may:
1o When drawing up or preparing a notarial deed, make or verify and validate the findings or entries in the deed of statements of fact and declarations of the parties directly related to the legal act contained therein;
2 o Take other actions intrinsically linked to the notary’s mission as a public officer.
The objective of these modifications to the Notaries Act is to ensure the control by notaries of their entire file, and intrinsically to limit the use of “closing centers”.
II. ACCESS TO JUSTICE
Studies Funds
Under new amendments to the Act respecting the Barreau du Québec (CQLR c B-1) and the Notarial Act introduced by Bill 34, the funds for legal studies of the Barreau du Québec and the notarial studies fund of Chambre des notaires du Québec, whose existence is already provided for by these Acts, now have, as their additional purpose, the financing of measures to promote access to justice.
Enforceability of notarial deeds
To allow notaries a greater role in promoting access to justice, certain notarial acts will now be enforceable by operation of law, in the same way as a judicial decision.
Thus, the Civil Code of Québec is amended by the addition of a new section 1603.1, which provides that a creditor may obtain the enforcement of a contractual obligation established in a notarial deed, all in accordance with the procedure to be established by regulation of the government.
Conclusion
In summary, the objectives of Bill 34, which was adopted and brought into force only a few weeks after it was introduced, are as follows:
- The modernization of the notarial profession, which involves the conclusion of notarial deeds on a technological platform, the creation of a central digital registry, as well as the possibility of signing notarial acts remotely under certain conditions.
- A greater contribution by notaries and lawyers, through the use of the funds for legal studies of the Barreau du Québec and the Chambre des notaires du Québec, to promote access to justice, and through the introduction of the enforceability of certain notarial acts, thus reducing the congestion of the courts.