Liability of Notaries

Overview

The majority of professional liability claims in the legal professions arise from immovable transactions and hypothecary financing, both of which fall squarely within the traditional activities of the Quebec notary (notaire). The case law confirms that notaries have frequently been sued for professional fault (faute professionnelle). A landmark decision of the Supreme Court of Canada, Roberge, restated basic principles governing notarial liability and clarified certain behavioural standards, drawing strong reactions from the notarial profession. Some commentators saw the decision as imposing a standard close to an obligation of result (obligation de resultat). The legal framework governing notarial liability, however, remains rooted in the obligation of means (obligation de moyens), subject to carefully defined exceptions. This lesson examines the nature of the notary-client relationship, the intensity of the resulting obligations, the principal duties of the notary, the question of subsidiarity, and the notary's potential extra-contractual liability toward third parties.

Learning Objectives

Classify the legal nature of the notary-client contract and explain why no single characterisation covers all notarial activities.
Distinguish the obligation of means from the obligation of result in the context of notarial practice and identify the situations where each applies.
Apply the Roberge standard regarding the weight to be given to prevailing professional practice when assessing fault.
Identify and describe the five principal duties of the notary toward clients: authentication, advice, title examination, management of trust funds, and professional secrecy.
Explain why the theory of subsidiarity of the recourse against the notary was rejected by the Quebec Court of Appeal (Cour d'appel) in Bourque c. Hetu.
Determine the circumstances in which a notary may incur extra-contractual liability toward third parties.

Key Concepts and Definitions

Notary (notaire): a public officer (officier public) and legal adviser who authenticates deeds, advises parties, and fulfils functions defined by the Notaries Act (Loi sur le notariat, L.n.).
Authentic act (acte authentique): a deed received by a notary with the required formalities that carries the authority of a public act.
Mandate (mandat): a contract by which one person gives another the power to represent them in the performance of a juridical act with a third party (art. 2130 CCQ).
Obligation of means (obligation de moyens): an obligation requiring the debtor to act with reasonable prudence and diligence; the debtor is not liable for failing to achieve the expected result if the expected standard of care was met.
Obligation of result (obligation de resultat): an obligation requiring the debtor to achieve a specified result; non-achievement creates a presumption of fault.
Professional fault (faute professionnelle): conduct falling below the standard of the reasonably prudent and diligent notary in the same circumstances.
Duty to advise (devoir de conseil): the obligation of the notary to inform all parties of the nature, legal consequences, and required formalities of their agreements.
Trust account (compte en fideicommis): an account in which a notary holds funds belonging to clients or third parties, subject to strict handling rules.
Subsidiarity (subsidiarite): the former doctrine requiring the client to exhaust recourses against the principal debtor before suing the notary; now rejected.
Examination of titles (examen de titres): the process by which the notary reviews the chain of title from the land register (registre foncier) and analyses each deed for validity, legal effects, and capacity of the parties.

Nature of the Notary-Client Relationship

Art. 11 of the Notaries Act (Loi sur le notariat) imposes on the notary a duty to act with impartiality and to advise all the parties to a deed to which they wish to give the character of authenticity. A parallel exists with art. 2138 CCQ, which requires a mandatary (mandataire) to act honestly and loyally in the best interest of the mandator (mandant) and to avoid conflicts of interest.

The legal characterisation of the contract between the notary and the client remains contested. Under the former Civil Code of Lower Canada (Code civil du Bas-Canada, CCLC), art. 1732 CCLC provided that notaries were subject to the general rules governing mandate (mandat) to the extent that those rules could apply. This characterisation holds in several contexts: negotiation of a loan, immovable transactions, and distribution of funds according to the client's instructions. A notary who carries out these activities acts as a mandatary.

Other activities resist this label. When a notary receives an authentic act (acte authentique), the Notaries Act prevents the notary from representing any party. When the notary acts as a legal adviser, no act of representation occurs, and the contract of mandate, defined by art. 2130 CCQ as the power to represent a person in the performance of a juridical act with a third party, does not apply.

Certain notarial activities have been characterised instead as professional services contracts (conventions de services professionnels), for example the examination of titles (recherche de titres). Some authors treat specific engagement types as contracts sui generis.

A single label cannot be applied to all notarial services. The correct characterisation depends on the specific role the notary fills for each act and the type of obligation the notary assumes in that particular context.

Intensity of the Obligational Bond

Obligation of Means and the Standard of Care

Notaries are, as a general rule, bound by an obligation of means (obligation de moyens). In Legault c. Thiffault, the Quebec Court of Appeal stated that notaries, as professionals, have the obligation to render attentive, diligent, and competent services to their clients, and to provide wise and judicious advice to the extent reasonably expected of a legal practitioner of ordinary competence (TR).

The Supreme Court of Canada confirmed this standard in Roberge, holding that notaries owe their clients, in principle, an obligation of diligence (obligation de diligence).

To establish the fault of a notary, the plaintiff must demonstrate that the notary departed from the conduct of a reasonably prudent and diligent practitioner in the circumstances. The standard is assessed in the abstract: it does not depend on the individual notary's personal habits or subjective evaluation but on what a competent notary would have done.

Exceptional Obligation of Result

In defined situations, the notary's obligation rises to one of result (obligation de resultat). This occurs when the notary must, under the terms of a clear and specific mandate:

Procure for the client a valid authentic act (acte valide authentique).
Disburse funds in accordance with instructions.
Carry out a mandate expressed in very specific terms.

In these circumstances, non-achievement of the specified outcome creates a presumption of fault, which the notary can rebut only by proving superior force (force majeure) or the fault of the creditor.

Professional Practice and the Roberge Standard

Roberge generated significant debate. Some commentators, including Me Desjardins, described the decision as transforming the notary's obligation of means into one of result. This reading overstates the holding. The Supreme Court did not impose an obligation of result on notaries as a general matter. The decision confirmed that the concept of the reasonably prudent and diligent notary is an abstract standard that may differ from the aggregate of individual, concrete practices within the profession. The Court stated:

[I]t is not sufficient [...] to follow current professional practice to escape liability. The reasonable character of that practice must be capable of being demonstrated. (TR)

This passage instructs courts to remain objective when evaluating established professional practices. Compliance with a standard practice does not, by itself, discharge the obligation of diligence. The practice must also be objectively reasonable.

The converse also holds. The Quebec Court of Appeal subsequently observed that a notary who does not follow current professional practice likewise does not escape liability. In one decision, a directive of the Chambre des notaires was characterised as confirming a measure of elementary prudence. In another case, however, a notary was not held liable despite having departed from the standard form contracts proposed by the Chambre des notaires.

The reconciliation of these positions, as suggested by Professor Marquis, lies in the duty of the notary to verify the reasonableness of a practice before adopting or rejecting it. If the prevailing practice is unreasonable, the notary should depart from it. If the practice is reasonable, the notary should follow it or risk civil sanctions. The assessment of reasonableness, Marquis acknowledges, will not always be straightforward.

Roberge also addressed the probative value of expert evidence. The Supreme Court specified that the trial judge remains the final arbiter and that expert testimony does not bind the court on the precise legal question it must decide. Whether expert evidence is required to prove a notarial fault remains debated. Some decisions hold that a judge may rule on the character of the error without expert witnesses; others suggest that expert evidence is necessary to prove a professional practice. The simple filing of a doctrinal article, however, does not suffice as proof of practice. Courts must also assess the notary's conduct as of the date the advice was given, without judging in light of events that arose subsequently.

Duties of the Notary Toward Clients

The notary owes several specific duties to clients. A breach of any of these duties may give rise to professional liability when the three general conditions of civil liability are met: fault (faute), injury (prejudice), and causation (lien de causalite).

Duty of Authentication

This duty originates principally in art. 10 of the Notaries Act, which provides that the notary is a public officer who collaborates in the administration of justice and who, as a legal adviser, has the mission of receiving deeds to which the parties wish to give the character of authenticity attached to acts of public authority, of ensuring the date, of retaining the deposit in a record (greffe) for deeds received in minute, and of giving communication by issuing copies or extracts.

The notary must comply with the essential formalities required to confer the solemn character on a deed:

Record the date and place.
Reproduce the clauses that translate the parties' intentions into legal terms.
Act with probity and refrain from entering any false or prejudicial statement.
Correctly designate immovables, lots, and discharged loans.
Read the deed to the parties.
Verify the identity, quality, and capacity of the parties by all reasonable means.
Collect the signatures and, where necessary, a solemn declaration.
Sign the deed personally. This obligation is generally recognised as an obligation of result.

After execution, the notary must, in certain circumstances, ensure follow-up to the authentication: observe the formalities relating to the effectiveness and publication (publicite) of the deed. Where the true intention of the parties can be inferred and their wishes reflected accurately, an application for improbation (inscription de faux) may allow the notary to limit or avoid professional liability.

Case law introduces an additional layer. Even where the notary has no obligation to publish every deed, the notary must, at a minimum, inform clients of the formalities required to preserve the legal effect of the deeds received. In the area of movable hypothecs (hypotheques mobilieres), a competent, prudent, and diligent notary must inform the client of the limited duration of such a hypothec; failure to do so constitutes a fault by omission in the duty to advise.

Duty to Advise

The duty to advise (devoir de conseil) is defined as a moral and legal obligation incumbent on the notary to inform all parties, according to their respective needs and the particular circumstances of each case, of the nature and the legal and sometimes economic consequences of their agreements, as well as of the formalities required to ensure the validity and effectiveness of those agreements.

This obligation is one of means. It encompasses duties of information, recommendation, and protection. It may give rise to solidary or in solidum liability. The obligation intensifies when the notary is aware of specific problems.

As a public officer and disinterested adviser (conseiller desinteresse), the notary owes these obligations to all the parties to the deed. The notary cannot act as a mere drafter (simple redacteur) and must ensure that each party has received adequate explanations and understands the foreseeable legal consequences of the notary's drafting. The notary must prevent any party from becoming, for lack of advice, the unwitting victim of the other party's manoeuvres.

Factors modulating the intensity of the duty to advise include:

The notary's familiarity with the type of transaction.
The information provided by the client.
The importance or novelty of the applicable regulations.
The scope of the mandate.
The client's command of the language, level of education, business experience, and age.
Whether the client has received independent legal advice from a third party.
A pre-existing business relationship with the client, which has been held to intensify the duty.
Conversely, the modesty of the fees charged has been treated as a factor of relativity.

The duty is not perpetual. Unless a specific agreement provides otherwise, notaries are not required to maintain a continuing "legal watch" (veille juridique) over their clients' affairs.

Limits. The notary is entitled to assume that the parties possess the most basic legal knowledge. The notary need not inform the buyer of the price paid by the seller, nor evaluate the risks of a loan. The client's own experience may be held against the client; a court has reproached a plaintiff for failing to mitigate when business experience made mitigation reasonable. The Quebec Court of Appeal has specified, however, that the creditor's obligation to mitigate damages (obligation de minimiser les dommages) is itself an obligation of means: the creditor must have acted as a reasonably prudent and diligent person.

Errors of law. The notary is not answerable for every error of law but is liable for ignorance of established legal principles and settled case law. Where the law is uncertain, the notary will be at fault only if the chosen course of action is one that no reasonable, diligent, and prudent notary would have adopted. If the notary's position is later reversed by the courts, the notary will not be held liable if the original position was reasonable at the time. The notary must inform clients of the consequences and risks of each divergent opinion. Doctrine and case law require courts to situate themselves at the time the advice was given and not to judge in light of subsequent developments.

Example. A notary receives instructions to prepare a deed of sale for a residential property. The mandatory certificate of location (certificat de localisation) reveals an encroachment by a neighbouring structure. The notary fails to inform the buyer. After the sale, the buyer discovers the encroachment and suffers a loss. Here, the notary has breached the duty to advise by failing to inform the buyer of a foreseeable legal consequence within the scope of an ordinary title examination context.

Examination of Titles

The examination of titles (examen de titres) consists of reviewing the chain of transactions from the land register (index aux immeubles) and analysing each deed to assess its validity, legal effects, and the capacity of the parties.

As the Quebec Court of Appeal has observed, a notary who prepares a contract cannot allow irregularities and contradictions to persist when these are likely to impair the effectiveness of the titles and give rise to exactly the ambiguity that the notary is ordinarily called upon to dispel.

The examination of titles is, in general and unless the context indicates otherwise, an obligation of means. This is confirmed by both doctrine and case law.

A notary who is satisfied with a cursory verification, who relies on incomplete or verbally communicated information, or who omits the verification of titles entirely (unless that task was not part of the mandate) will be deemed negligent. The notary must attend in person at the publication office (bureau de publicite des droits). The wording of certain title reports (rapports de titre) prepared by notaries may, by its effect, cause the practitioner to assume an obligation of result or even a guarantee.

A thirty-year title search may be insufficient where indications suggest defects prior to that period. Relying on prior title searches performed by other notaries in earlier transactions, or allowing prior errors to persist, has been held insufficient. By contrast, reliance on a land surveyor (arpenteur-geometre) may constitute a ground of exoneration.

When no certificate of location (certificat de localisation) is available, the notary should inform the clients.

Example. A notary hired to prepare a sale performs a thirty-year title search but ignores references in the chain to an unresolved servitude registered forty-five years earlier. The buyer later discovers the servitude restricts construction on the lot. The notary's failure to pursue the earlier reference, despite clear indications of the defect, may constitute professional fault.

Trust Account Obligations

Under the Notaries Act, the notary holds funds on behalf of other persons. The notary must respect the client's instructions regarding the deposit, handling, and remittance of these sums, or must inform the client of recommendations. Following Roberge, the notary must also respect the practice recommended by the Chambre des notaires, particularly where those directives confirm measures of elementary prudence.

Failure to comply constitutes a fault for which the notary is liable. The notary who fails to retain the funds necessary to pay a prior hypothecary claim (creance hypothecaire preferentielle) until the discharge or release (quittance ou mainlevee) is executed commits a fault. Recent decisions have, however, held that a minor breach of the regulatory framework does not automatically engage the notary's liability.

The notary must also refrain from acting as surety (caution), from borrowing sums from clients or from the trust account, and from commingling personal and trust funds. A notary who breaches these rules must not only reimburse the sums but is also subject to severe disciplinary control.

Professional Secrecy and Conflicts of Interest

The notary's duty of confidentiality (obligation de confidentialite) is grounded in art. 9 of the Charter of Human Rights and Freedoms (Charte des droits et libertes de la personne) and art. 14.1 of the Notaries Act. The notary may not disclose facts learned or brought to the notary's attention in the exercise of professional functions. A breach exposes the notary to both disciplinary proceedings and civil liability, including material and moral damages and punitive damages (dommages punitifs).

The notary must also respect the rules of impartiality (regles d'impartialite). Failure to do so may give rise to a judgement of civil liability.

Subsidiarity of the Recourse Against the Notary

For many years, the case law applied the rule that the civil liability of the notary was only subsidiary (subsidiaire) to that of the principal debtor. A recourse against the notary was considered premature as long as the creditor had not exhausted all recourses against the principal debtor or the debtor's guarantors. This rule was applied even in cases of the debtor's bankruptcy or insolvency.

In 1986, a first challenge emerged. In Caisse populaire de Charlesbourg c. Lessard, the court expressed the view that subsidiarity lacked a serious basis in Quebec law. The court noted a confusion between the proof of injury and the right to sue.

The definitive change came from the Quebec Court of Appeal in Bourque c. Hetu:

[T]he notary does not escape a direct recourse founded on the general rules of contractual or delictual (extra-contractual) liability. Once the conditions for their application are met, the notary must be held liable for reparation without the client needing to first exercise another recourse or demonstrate the insolvency of the principal debtor. (TR)

In a subsequent decision, the Court of Appeal confirmed that the subsidiarity theory does not apply in matters of notarial liability, rejecting any prior obligation of discussion (obligation prealable de discussion) against the principal debtor or sureties.

The principle that emerges is direct: subsidiarity of the fault does not entail subsidiarity of the liability. Once fault, injury, and causation are established, the client may sue the notary without first pursuing the co-contracting party.

A practical point nonetheless affects the allocation of damages. In the final apportionment of liability, the principal debtor risks bearing the totality of the damages (100%) while the notary's share may be reduced to 0%.

Two additional considerations arise. First, a creditor who, in the principal proceedings, opts for taking in payment (prise en paiement) risks extinguishing the claim against the notary. Second, in a dispute involving a title defect arising from an erroneous lot description, a court has dismissed the recourse against the notary on the ground that a prior demand (mise en demeure) had not been sent.

Liability of the Notary Toward Third Parties

The notary, as a public officer, may in exceptional circumstances incur liability toward persons who are not parties to the notarial contract. This arises, for instance, when the failure to comply with the formalities of authentication produces effects detrimental to third parties several years later.

A deed of sale containing an error may cause injury to a subsequent purchaser. Because no contract links the notary and the subsequent purchaser, the latter's recourse is extra-contractual (extracontractuel), governed by the general regime of art. 1457 CCQ. In practice, this situation is comparatively rare because subsequent purchasers typically retain their own legal adviser, who may discover the defect before the transaction is completed.

A notary may also incur extra-contractual liability where the notary's advice to a client leads the client to commit an illegal act that causes injury to a third party.

Example. A notary prepares a deed of sale but incorrectly describes the immovable. Years later, a second buyer acquires the property on the strength of the published deed. The description error causes ambiguity over the boundaries, and the second buyer incurs costs to resolve the dispute. Because no contract exists between the notary and the second buyer, the second buyer may bring an extra-contractual claim against the notary under art. 1457 CCQ.

Practice Checklist

Characterisation of the relationship

Identify the service the notary provides (authentication, mandate, advice, title examination) and determine which legal characterisation applies.
Distinguish whether the obligation is one of means or of result for each specific act.

Standard of care

Assess the notary's conduct against the abstract standard of the reasonably prudent and diligent notary, not against custom alone.
Evaluate whether prevailing professional practice, if followed, was itself reasonable (Roberge standard).
Consider whether expert evidence is required to establish the standard of practice.

Authentication

Verify that the formalities of the authentic act are complete (date, place, clauses, identification, reading, signatures).
Confirm that follow-up obligations (publication, registration) were met or that clients were informed of outstanding formalities.

Duty to advise

Confirm that all parties received appropriate explanations adapted to their knowledge, language, and experience.
Verify that the notary informed clients of divergent legal opinions if the law was uncertain.
Check whether the notary had pre-existing knowledge of problems that would intensify the duty.

Title examination

Confirm the scope of the search (thirty years or longer if indices of prior defects exist).
Verify attendance at the publication office (bureau de publicite des droits).
Assess whether reliance on prior notarial searches was reasonable.
Confirm that the client was informed of the absence of a certificate of location if applicable.

Trust account

Verify compliance with Chambre des notaires directives on the handling and remittance of trust funds.
Confirm that funds for prior hypothecary claims were retained until discharge or release was executed.

Subsidiarity

The recourse against the notary is direct and does not require prior exhaustion of recourses against the principal debtor (Bourque c. Hetu).
Assess the risk that taking in payment (prise en paiement) may extinguish the claim against the notary.
Verify whether a prior demand (mise en demeure) was sent before instituting proceedings for a title defect.

Third-party liability

Determine whether the notary's fault caused injury to non-contracting persons (extra-contractual recourse under art. 1457 CCQ).

Glossary

Authentication (authentification): the process by which a notary confers on a deed the character of authenticity that attaches to acts of public authority.
Authentic act (acte authentique): a deed received by a notary with the required formalities, bearing public authority.
Certificate of location (certificat de localisation): a document prepared by a land surveyor showing the boundaries, buildings, and encumbrances affecting an immovable.
Chambre des notaires: the professional order governing notaries in Quebec.
Duty to advise (devoir de conseil): the notary's obligation to inform all parties of the nature, consequences, and formalities of their agreements.
Examination of titles (examen de titres): the notarial review of the chain of title from the land register.
Improbation (inscription de faux): a judicial proceeding to challenge the authenticity or accuracy of an authentic act.
Mandate (mandat): a contract by which a person gives another the power to represent them in the performance of a juridical act with a third party (art. 2130 CCQ).
Mise en demeure: a formal demand to perform an obligation or remedy a breach.
Notary (notaire): a public officer and legal adviser governed by the Notaries Act.
Obligation of means (obligation de moyens): an obligation requiring reasonable prudence and diligence, without guaranteeing a specific result.
Obligation of result (obligation de resultat): an obligation requiring the debtor to achieve a specified outcome; non-achievement creates a presumption of fault.
Professional fault (faute professionnelle): conduct that falls below the standard of the reasonably prudent and diligent professional.
Publication office (bureau de publicite des droits): the office where real rights are registered and publicly accessible.
Subsidiarity (subsidiarite): the rejected doctrine that the recourse against the notary is secondary to that against the principal debtor.
Taking in payment (prise en paiement): a hypothecary recourse by which the creditor acquires ownership of the charged property in satisfaction of the claim.
Trust account (compte en fideicommis): an account in which a notary holds funds belonging to clients or third parties.

References and Further Reading

Civil Code of Quebec (CCQ): arts. 1457, 2130, 2138.
Civil Code of Lower Canada (CCLC): art. 1732.
Notaries Act (Loi sur le notariat, L.n.): arts. 10, 11, 14.1.
Charter of Human Rights and Freedoms (Charte des droits et libertes de la personne): art. 9.
Selected case law: Roberge (Supreme Court of Canada); Legault c. Thiffault (Quebec Court of Appeal); Caisse populaire de Charlesbourg c. Lessard; Bourque c. Hetu (Quebec Court of Appeal).
Doctrine: Desjardins; Marquis (on the duty to verify the reasonableness of professional practice).

Disclaimer

This article is for informational purposes only and does not constitute legal advice. Quebec civil law may evolve through legislation and judicial interpretation. For advice on a specific situation, consult a qualified Quebec lawyer or notary.

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