Under pressure to deliver legal services in spite of Quebec‘s public health state of emergency, notaries in the province have been given the go-ahead by the Quebec Ministry of Justice to sign notarized documents remotely.
Under an Order-in-Council on Essential Services issued by the Quebec government on March 23rd and extended until May 4th, notaries, lawyers and bailiffs are deemed to offer essential services, giving them the choice to remain open or not. But the vast majority of notaries are finding it tough going since the onset of Covid-19 pandemic, with many either laying off administrative staff or putting them on telework, said Isabelle Couturier, president of the Quebec Professional Association of Notaries.
“There was a lot of pressure two weeks ago by real estate brokers and others who absolutely wanted to complete transactions even though a quarantine was implemented,” said Couturier. “A lot of notaries were scared for themselves, for their personnel, because they did not want their offices to become places where the virus spread because we were deemed to offer essential services. It’s not true that everything is essential.”
The situation has since calmed down. Some notaries are meeting with clients but ostensibly only for urgent matters. Most lay the groundwork by teleconferencing or videoconferencing with clients, reviewing the matters at hand and only then meeting with clients for the signature of documents. Meetings with clients however take place under strict protocols implemented by notaries themselves, and barely last a few minutes. They are held in a separate but adjoining office that has been scrubbed clean and that is inaccessible to others in order to adhere to the principles of social distancing. Communication between the notary and the client only takes place through a Plexiglas. After the documents are signed, with a pen brought in by the client, the secure quarters are once again sterilized. It makes for a long process, said François Bibeau, the president of the Quebec notary legal society, the Chambre des notaires du Québec.
“It lengthens the process enormously because the notary is doing twice the work – two readings, two meetings – but that is what some notaries have put in place to proceed,” explained Bibeau.
Yet others view the outbreak as an opportunity to test out technology that the Chambre des notaires has been exploring and studying over the past three years ever since it sent a delegation to France to see how an electronic exchange system used by French notaries since 2006 works.
As of April 1st, notarized documents can be signed remotely but it is an “exceptional and temporary measure” that will be available only as long as the Quebec public emergency decree lasts, noted Bibeau. On top of that, the service is being gradually phased in so that the Chambre and its partners can provide solid support to notaries who use it, without being overwhelmed by calls for assistance. So far approximately 180 notaries have signed up to offer the technological driven-service, and some 20 notarized acts have been remotely signed.
“It’s not an easy solution,” admitted Bibeau. “We warned notaries that it takes time to have a sound footing. They must conduct tests. They must ask questions. That’s normal. It’s new, for notaries and for clients. I tested it. I received a remote notarized act, and it was rather simple but it took much more time than a normal act. That’s normal too. It was the first one I did.”
The Chambre has implemented strict security protocols to prevent fraud, identity theft, possible undue influence or even uninformed consent. A notary must be able to see and hear each party, and each party must be able to see and hear the notary. The same holds true for witnesses. The signatories and the notary must be able to see the notarized act, or parts of the notarized act, and sign it using technology that would allow it to identify the signors and identify them. And the notary must be able to officially sign the documents electronically.
Then there are technological requirements notaries must have in order to proceed remotely. They have must have an official digital signature, must use Microsoft Teams version Office 365 Business essentials or Business premium, must have the electronic signature platform ConsignO Cloud developed by Montreal firm Norarius (of which the Chambre is a stakeholder), must have a Windows or Mac computer and should have a high-speed internet connection.
The strict security guidelines are welcome but it hampers public accessibility, pointed out Couturier. Not everyone has a solid internet connection and nor is everyone at ease with technology, including some notaries who have no interest in testing out the technology.
“The process is very secure,” said Couturier, president of the Montreal-based notary firm Couturier Hotte Notaires. “But is an elderly woman living by herself able to sign electronically? Under the current situation, the security measures restricts a lot of users who are incapable of dealing with the technology.”
Couturier is not exaggerating. Her firm is now dealing with such a situation. An 86-year old woman living in a residential and long-term care centre, now under quarantine, is unable to complete the sale of her home. And in the meantime the family who purchased the home is on stand-by. “I cannot see her to have her sign the documents,” said Couturier. “She is unable to use the technology. We would like to resolve the issue but we’re not able to.”
Another wrench is spotty buy-in by financial institutions. Financial institutions, as with any third-party in the notarized act, are clients, explained Bibeau. To be able to complete notarized documents remotely, all parties must endorse the new process. And that’s not taking place.
“We are trying to make it clear to financial institutions that this solution went ahead because of a government decree so it’s on solid legal footing, which is a concern that some have,” said Bibeau. “So that could lead to situation where a notary must explain to his client that they cannot proceed remotely because their financial institution does not accept the procedure. Even if the client may be upset, there is nothing that a notary can do.”
A spokesperson for the Canadian Bankers Association said the organization cannot comment on the commercial or operational decisions of its individual member banks.
The temporary stop-gap measure will eventually lead to something more permanent, believes Bibeau and Couturier. Notaries appear to be solidly in support of technological solutions for their work. According to a survey of 500 notaries, 90 per cent of notaries are ready to offer their clients a tool to sign a notarized document using technology, with 82 per cent affirming they are ready to abandon doing things the traditional way of using pens.
“There’s no doubt that our guidelines will evolve,” said Bibeau. “It’s as if we are building an airplane in mid-air. We’re going to see how it works out, what the pitfalls are for notaries in using these applications and then react to readjust to their needs. That’s the way it is in any innovation situation, regardless of the industry.”
This story was originally published in The Lawyer’s Daily.