The notary is a public officer and legal adviser who plays a crucial role in the administration of justice. Thus, he authenticates acts by ensuring the date of the acts, their identity, the quality and capacity of the parties to them and ensures that the latter express free and informed consent.
As a notary, you carry out tasks that are exclusively reserved for you, such as:
- The drafting of notarial deeds;
- The drafting of private deeds;
- The drafting of agreements, applications, by-laws, resolutions and any other document of a similar nature relating to the incorporation, organization, reorganization, dissolution or voluntary liquidation of a legal person or the amalgamation of legal persons;
- Drafting and signing of declarations and applications of an administrative nature prescribed by the laws relating to the legal publicity of companies.
To do this, you must use an official signature certified by the secretary of the Chambre des notaires (” the Order “) that you affix to notarial deeds and any other documents that you are required to sign.
We understand that the practice of this highly regulated profession can sometimes expose you to disciplinary proceedings brought by the Chambre des notaires. At Lambert Lawyers, we are here to support you and protect your rights when your practice is called into question.
Don’t wait to face the charges alone and contact us now for specialized legal assistance in criminal and disciplinary law and to be entitled to a solid defense, adapted to your situation.
Recourse in the event of a dispute with the Chambre des notaires
When a notary is accused of having breached his professional obligations, he can face various recourses against him.
Disciplinary complaint for breach of ethics
An individual may submit a request for an investigation against a notary if he or she believes that the notary has contravened the Professional Code, the Notaries Act or the Code of Ethics of Notaries. The syndic in charge of the investigation may then decide whether or not to file a complaint against the professional with the Disciplinary Council. To determine the liability of a notary, the trustee must establish the existence of a fault, a prejudice and a causal link, these three elements being essential.
The Disciplinary Council will then have the task of determining the notary’s innocence or guilt and, if necessary, imposing one or more sanctions such as a reprimand, temporary or permanent removal from the roll of the Order and a fine.
Being the subject of a disciplinary complaint can be a trying experience for any notary. Our team understands the impact this can have on your career and reputation. If you are faced with a disciplinary complaint, do not wait for the situation to escalate. Contact us today for a rigorous defense to protect your rights and continue your practice with peace of mind.
The duties of the notary
As a notary, you are subject to strict obligations that govern your professional conduct. An investigation by the syndic may be opened when a professional appears to be contravening his ethical obligations by his conduct, his lack of integrity or diligence or following any other offence. By observing the duties and obligations of notaries, the situations that meet these conditions become more obvious.
Duties common to all professions
Notaries are subject to the obligations set out in the Professional Code, but also to those of the Code.
You therefore have the obligation to act with competence, integrity, dignity, disinterestedness and independence. You must be available and diligent, maintain professional secrecy, and adequately supervise any student, articling student, or employee for whom you have immediate responsibility.
In addition, you must avoid any conflict of interest situations and report as soon as possible to the syndic of the Order any situation likely to undermine the integrity of the profession. You have a duty of probity, objectivity and rigorous integrity.
In addition, before accepting a mandate, you must assess your skills and knowledge to ensure that you have the necessary expertise to meet the client’s expectations.
In addition, your fees must always be fair and reasonable, i.e. justified by the circumstances and proportionate to the services rendered.
The duties of notaries
The duty to verify
You must obtain the most complete and accurate information possible in order to properly advise your clients. For example, when drafting a title report, no irregularities must remain.
The duty to authenticate documents
In order to authenticate a deed, you must comply with certain formalities, including the official signature, and to verify the identity, capacity and capacity of the parties to contract and to ensure, in multiple ways, that the information contained in the deed is accurate.
The duty to advise
Your role is not limited to drafting documents: you also have a duty to inform, inform, recommend and protect.
You must enlighten the parties on the nature and consequences of their pacts and agreements, as well as on the acts required to ensure their validity and effectiveness. You must also provide any explanations necessary for the understanding and appreciation of your services to a client.
The duty of care and restitution
When property is in your care, you must take reasonable care of it and not use it for personal use or for any purpose other than that indicated by the client.
You must also refrain from acting as a guarantor or borrowing money from your customers.
The duty of access
At all times, you must report to your client when required to do so and allow them access to their documents, except in cases of serious prejudice. In the event of a refusal, you must notify your customers in writing explaining the reason for the refusal and informing them of their recourse.
Derogatory acts
Contravening some of your professional duties is an act of derogation. In fact, in addition to the derogatory acts mentioned in the Professional Code, a notary commits a derogatory act in particular when he:
- Urges or repeatedly induces an individual to use the Applicant’s services;
- Misappropriates or uses for purposes other than those indicated by the client the funds, securities or other property entrusted to him;
- Confers authenticity on illegal or fraudulent acts;
- Commits, participates in, or agrees to render services in any way whatsoever to the commission of an illegal or fraudulent act.
These actions can lead to serious disciplinary consequences that can affect the notary’s practice and reputation. If you are accused of committing an act of derogation, it is essential to take prompt and effective steps to defend your rights with a disciplinary lawyer.
Improper use of the sums entrusted to the notary
When a notary commits an act of derogation in this way, the individual whose money has been misappropriated may file a request for an investigation with the syndic, but he or she may also make a claim to the Insurance Fund in order to be compensated. Its mission is to ensure the professional liability of the members of the Order and is regulated by the Regulation respecting the indemnity fund of the Chambre des notaires du Québec.
In order for a notary’s professional liability to be incurred and for the Insurance Fund to compensate the victim, certain conditions must be met:
- The malpractice must be committed in an unintentional manner, such as an oversight, mistake, or negligence.
- The fault must have caused damage.
- The damage must be directly caused by the notary’s fault.
When these three conditions are met, an individual can make a claim by completing the Claimant’s Form and then sending it to the Insurance Fund by email, fax or mail. These actions must be completed within one year of becoming aware of the wrongdoing, with some exceptions. Following receipt of the claim, the Insurance Fund conducts an investigation and analyzes it. The Minister then makes a final decision on eligibility and sends it to the individual.
Disagreement over billing
Disputes over fee accounts can arise even with the utmost transparency. When a client disagrees with his or her notary regarding a fee account, he or she may submit a request for conciliation of the fee accounts to the Chambre des notaires under section 2 of the Regulation respecting the procedure for conciliation and arbitration of notaries’ accounts.
This remedy can be used, for example, when the account does not comply with the estimate provided, when it lacks details or when the amount invoiced is not proportional to the services rendered. A request to use this service must be sent to the Order within 45 days of the date of receipt of the disputed account.
If no agreement is reached following conciliation, a request for arbitration may be filed by the individual within 30 days of receiving the conciliator’s report. However, this process generates costs.
Illegal practice of the profession of notary
The illegal practice of the profession of notary is a serious issue. Anyone who uses the title or performs one of the acts reserved for notaries without being a member of the Order is liable to the penalties provided for in the Professional Code, i.e. a fine of not less than $600 and not more than $6,000.
If you would like to be represented in a dispute against the Chambre des notaires, whether for a disciplinary complaintor for an illegal practice of the profession, contact us today. Our team is experienced in these types of disputes and can offer you personalized legal assistance to protect your rights and your career. Call us now for a confidential consultation.