On January 11, 2024, a new procedure came into effect for the legalisation of documents issued throughout Canada (including Québec) and which are destined to be produced before foreign authorities, whether they be supporting documents for administrative purposes such as the issuing of permits or full-fledged pieces of evidence used as exhibits in international Court proceedings.
This is an overview of a new tool which could simplify the way business is done, and which will be useful to executors, liquidators and trustees, compliance officers or international contacts.
A 60-year old new development
Canada was one of the sole world powers not to have joined, at the origin or throughout the years, the Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents1. Despite the exhaustive private international law provisions of local legislation such as provided in the Civil Code of Québec, it proved to be a problem for the import and export of private or governmental legal documents involving a foreign element.
Instead of being able to rely on a standardised format identical for all parties (it being understood that the Apostille is essentially a form of legalisation rather than a legal regime per se), the practitioner had to superimpose processes and applicable laws:
- For instance, to produce a Québec or Canadian document abroad, one had to first obtain a provincial certification from a recognised authority (such as a professional order), then get it counter-signed by the federal government and finally obtain the seal of a local diplomatic representative of the country in question.
- Conversely, to produce a foreign document in Québec, one often had to obtain opinions of foreign law from abroad to comply with Article 2809 of the Civil Code of Québec and then still meet the criteria of evidence such as for the semi-authentic act2 to be able to use it in Court.
When it came to producing a Québec or Canadian document abroad, the multiplication of intervening parties caused costs and delays incompatible with the rhythm of business. For instance, in 2023 the processing times of the federal government alone for counter-signature could be up to 75 business days, without even accounting for the fact that some countries do not necessarily have diplomatic representation nearby.
Without warning, on May 12, 2023, Canada finally ratified the Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents3.
The news remained under the radar at the time because Global Affairs Canada did not communicate to legal practitioners how they intended to integrate this change into Canadian private law across the provinces, the territories and also into the reality of two different systems of private law.
A process delegated to Provinces
Since then, and using the foundation of the provinces' competence in private law under the Canadian constitution, the federal government designated certain provinces as competent authorities to deliver the Apostille4. This is important, because the integrity of the Apostille process around the world rests on the designation by each signing party of only one authority able to warrant the integrity of the documents under its jurisdiction.
On December 6, 2023, the National Assembly of Québec adopted An Act respecting Apostilles for documents to be produced in a foreign State party to the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents5 which determined the modalities applicable for documents issued pursuant to Québec laws. Similar measures have been put in place in other Provinces.
Pursuant to that legislation, the "old" way of doing things is officially invalidated without any transitory measures. According to our sources, all applications filed with Global Affairs Canada before January 11, 2024 under the prior "legalisation" process will be simply rejected and will need to be filed again under the new rules.
The Minister of Justice of Québec is competent to deliver the Apostille upon application from an individual, a lawyer or a notary for a flat fee of 65$. After a processing time of 10 business days and upon receipt of the document bearing the applicable stamp, the applicant will be able to file it as a local document before the foreign jurisdiction without having to go through a consulate, an embassy or a high commission of that country in Canada.
Due diligence remains necessary
Despite this effort to simplify administrative issues, not all legal or business documents are eligible to receive the Apostille, such as certain true copies of original documents. Likewise, some acts still require a prior authentication by a professional order6. Furthermore, even if the Apostille guarantees the formal integrity of the document being produced, opinions of foreign law may still be necessary to inform the Courts of the functional equivalence of their content or authenticity.
Given these conditions, our Estate and Trusts team is available to help you navigate the correct use of Wills, deeds of donation, trust deeds, certificates of intestacy or other documents, obtain for you the correct level of certification required and provide you with useful legal advice in the settling of your international files.
Footnotes
1 https://assets.hcch.net/docs/e963e513-7483-4627-81eb-620e2c755876.pdf
2 On that subject, see the decision of the Québec Court of Appeals in Succession de Spiric obtained on January 25, 2024 by Mtre. Lauren Flam and Mtre. Xavier Morand Bock from RSS, 2024 QCCA 84.
3 https://www.hcch.net/en/news-archive/details/?varevent=914
4 For reference, Québec, Ontario, Saskatchewan, British Columbia and Alberta are competent to deliver the Apostille – all other Provinces and Territories remain under the jurisdiction of the federal government which has designated Global Affairs Canada as the competent authority.
5 L.Q., 2023 c. 29.
6 For instance, in Québec, the signature of a lawyer must be accompanied by a Certificat de membre of the Québec Bar, and the signature of a notary must be accompanied by a Certificat d'authenticité et de qualité of the Chambre des notaires of Québec.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
