On May 12, 2023, Canada acceded to the Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (the Apostille Convention).
Through this accession, Canada has joined a list of 125 countries that are parties to this multilateral treaty. The underlying goal of the Apostille Convention is to facilitate legal cooperation between nations by eliminating the multi-step legalization process previously used (involving legalization of documents by a consular officer at the destination country’s embassy or consulate within Canada) with the issuance of a single certificate called an Apostille.
What is the Apostille Convention?
The Apostille Convention abolishes the requirement of diplomatic or consular legalization for foreign public documents and replaces it with the issuance of an Apostille by a Competent Authority in the place where the document originates. Any country that is a signatory to the Apostille Convention is obligated to accept an Apostille issued by a Competent Authority in any other country that is signatory to the Convention.
The Apostille Convention considers “public documents” to be those that emanate from a public authority, administrative documents, notarial acts or other official certificates. However, the public nature of a document must be determined by the laws of the jurisdiction where the document originates. For example, a public document could include documents issued by Vital Statistics (for example, a birth or death certificate), notarized documents, educational documents, Court documents, criminal record checks or corporate registry documents. It is generally safe to assume that if a document was subject to legalization requirements prior to Canada’s accession to the Apostille Convention, it will be considered a public document for the purposes of the Apostille Convention and will require authentication in the form of an Apostille.
The purpose of the Apostille is not to verify the contents of the public document, but rather to certify the authenticity of the origin and the notarization of the document.
How will this change the authentication process in Canada?
As of January 11, 2024, when the Apostille Convention comes into effect, Canada will issue Apostilles for authentication of all documents, including those intended for use in countries which are not signatories to the treaty. If such a document is being used in a country that is not a signatory, there may be an additional requirement to have the document legalized by that country’s foreign representative office.
Canadian law does not require authentication of foreign public documents before they can be used in Canada, and this is not expected to change when the Apostille Convention comes into effect.
Prior to Canada’s accession to the Apostille Convention, Global Affairs Canada issued authentication certificates for documents issued or notarized anywhere in Canada. As of January 11, 2024, documents issued by the Government of Canada will still be authenticated by Global Affairs Canada, as will documents notarized in Manitoba, New Brunswick, Newfoundland and Labrador, the Northwest Territories, Nova Scotia, Nunavut, Prince Edward Island and Yukon.
However, if a document is notarized in Alberta, British Columbia, Ontario, Quebec or Saskatchewan, then regardless of which Canadian jurisdiction it originated from, it will need to be authenticated by the designated Competent Authority in which it was notarized. The designated Competent Authorities for those provinces are:
- The Ministry of Justice of Alberta
- The Ministry of the Attorney General of British Columbia
- The Ministry of Public and Business Service Delivery of Ontario
- The Ministry of Justice and Attorney General of Saskatchewan
- The Ministére de la Justice du Québec (subject to an approval process currently pending in the province)
If a public document is notarized in any of the above-listed provinces, the Apostille will be issued by the Competent Authority in that province. Otherwise, the Apostille will be issued by Global Affairs Canada.
Implementation may disrupt or delay services
Until January 11, 2024, authentication services may be disrupted or delayed as governments transition toward implementing the Apostille Convention. If possible, it is advisable to wait to submit documents for authentication until January 11, 2024 or later, although authentications may still be issued in special circumstances. However, after January 11, 2024, it is possible that certain consulates or embassies may refuse to process non-Apostille authentications.
Conclusion
The goal of acceding to the Apostille Convention is to simplify authentication processes and facilitate international legal cooperation. Our team at MLT Aikins is available to assist you in navigating these new requirements.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.