The remote electronic notarial deed introduces a new element. It enables the notary to act without the physical presence of the parties. The Quebec legislator has chosen to adopt a restrictive approach in order to reinforce the probative value of notarial deeds.
My name is Naivi Chikoc Barreda, I’m a notary and I’m a professor at the University of Ottawa’s Civil Law Section. I have published an article entitled “De la covid-19 à l’acte électronique à distance : réflexion sur les enjeux de l’authenticité dématérialisée” (From covid-19 to remote electronic a reflection on the challenges of dematerialized authenticity), which was published in 2021 in the Revue générale de droit. In this text, I discuss the challenges of remote authentication from the perspective of notarial law and private international law.
In the vast majority of cases, remote authentication was introduced during the pandemic, as a measure taken by governments to ensure the continuity of notarial services at a time when physical travel was strictly limited. The aim of the article, then, was to analyze the impact of this measure on the essential attribute of the notarial deed – its authentic character – which had traditionally been understood as requiring the physical presence of the notary and the parties in the same place. In terms of international acceptance, at an institutional level, the International International Union of Notaries, which brings together over 90 countries, has declared that the remote electronic deed, i.e. online appearance, is not incompatible with the founding principles of the Latin notarial profession.
What was important was compliance with a series of minimum requirements that emphasized the notary’s direct and personal responsibility for the entire technological process. In particular, the notary’s duty to verify the identity and capacity of the parties involved, as well as the control of the freedom of expression of consent in the dematerialized environment, must under no circumstances be delegated to digital service providers.
There is a trend towards the expansion of remote authentication on an international scale. Firstly, there is a group of countries taking a liberal approach to the problem, opening up this possibility to all kinds of notarial acts without restriction. Secondly, there is a group of countries that adopt an intermediate approach, enshrining the principle of remote notarization while providing for exceptions in the case of certain particularly sensitive deeds or those requiring special precautions, such as family law, estate law and real estate law. And thirdly, there is the group of countries that adopt a restrictive approach, allowing this method of receiving documents only in exceptional circumstances or for certain types of documents that do not give rise to major problems of legal security, and for which there is a special need to facilitate remote access.
What is the current situation in Quebec? From March 2020 to October 2023, Quebec notaries were temporarily authorized to perform all types of notarial acts remotely via an electronic platform approved by the Chambre de notaires du Québec. This temporary regime came to an end in October 2023 with the coming into force of the Act to Modernize the Notarial Profession and Promote Access to Justice, which introduced significant changes in this area. In terms of the technological media, this becomes the principle for receiving and storing notarized deeds, while remote reception now becomes an exceptional measure that must be justified by the special context of the situation, according to the notary’s personal assessment.
The text also addresses the issue of the international circulation of notarial acts. The text identifies two risks of non-recognition of this document in the host country. Firstly, if the host country is not familiar with this method of receiving documents, and secondly, if the host country, even if it is familiar with remote authentication, subjects this method to stricter conditions than those existing in the document’s country of origin. For example, when the host country prohibits the use of private videoconferencing software, it will be necessary to reflect on how to standardize the legal framework within the various notaries belonging to the civil law tradition on an international scale, and on the lines of development that need to be explored. The need to establish a close link between the legal situation and the country where the notary is established, so as to improve international acceptance of the remote act.
