DISCIPLINE DIGEST
The Society of Notaries Public of British Columbia
OCTOBER 2012
Justin Han
Commissioned: May 2008
This is a review of the Member’s conduct regarding notarization services the Member
provided to a client. The inquiry was conducted May 24, 2012 and the Board hearing was
conducted on August 16, 2012. The Member and the Society entered into an agreed
statement of fact, admission and proposed penalty in the matter. The Agreement was
accepted by the Inquiry panel and the Board on review.
The Notice of Inquiry alleged that the Member notarized a declaration without meeting
with the declarant, without her being in his presence, without identifying her, and without
asking her to declare to the truth of the statements in the declaration as required by the
Evidence Act. The Notice alleged professional misconduct pursuant to Section 28(1)(c) of
the Notaries Act.
Agreed Facts
By Agreement the Member and the Society agree to the following facts:
1. On February 15, 2012, N. H. required the notarization of a Declaration to be filed
with the Land Title Office. N.H. telephoned the office of Han in the latter part of
the afternoon and it was agreed that she would attend his office in 20 minutes.
2. Upon her arrival at the offices of Han, N.H. produced the Declaration to the staff
member at the reception desk. At the request of the staff member, N.H. signed the
Declaration. The staff member took the Declaration to the office of Han while
N.H. remained in the reception area.
3. Han notarized the Declaration. However;
a. Han did not meet with N.H, did not see her sign the declaration, and she
was not in his presence when he signed the Declaration;
b. No identification was requested or obtained from N.H. to confirm her
identity;
c. Han did not ask N.H. to declare to the truth of the statements in the
declaration.
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4. The staff member returned to the reception area where she affixed Han’s notarial
seal to the declaration and gave it to N.H.
Agreed Admission
5. Han admits that when notarizing the Declaration of N.H., he did not meet with
her, she was not in his presence, she was not identified to him and he did not ask
her to declare that the statements in the Declaration were true as required by the
Evidence Act.
6. Han admits that by this conduct he violated his Oath of Office, Principles 1, 2 and
3 of the Principles of Ethical and Professional Conduct of the Society and that this
constitutes professional misconduct as set out in s. 28(1)(c) of the Notaries Act
[RSBS 1996] Ch. 334.
Decision
7. The Inquiry Panel reviewed the Agreement and accepted the facts and admission.
The panel was gravely concerned about the nature of the offence. The notarization
of documents is a core function of a notary and helps to ensure the integrity of our
legal system, affecting real estate transactions, the making of affidavits and a host
of other applications. The formalities involved in attesting documents are
mandatory and must be strictly followed.
8. The panel agreed with the following comments quoted in Law Society of BC v.
Skapski, 2012 LSBC 8 and find them equally applicable to notaries:
[17] However, as was noted in Law Society of BC v. Williams:
….members of the legal profession play a key role in ensuring the integrity of transfer
documents and safeguarding the system from fraud.
…
The submission of documents that are defective in their execution harms the …. system by
eroding the reliability and authenticity of documents submitted for registration.
[18] As adopted by the panel in Law Society of BC v. Walters 2005 LSBC 39 (quoting Re:
Lawyer 3, 2004 LSBC 27):
[23] Lawyers are put in a special position by virtue of the Evidence Act and by virtue of
their profession. They are permitted by the Evidence Act to complete jurats to enable
documents to be submitted into evidence that have the force of evidence under oath.
[24] Lawyers have a duty to scrupulously adhere to the formalities of swearing affidavits
because to do otherwise will have grave repercussions. Deponents can escape perjury
sanctions. Unreliable affidavits may cause judges and masters to worry about
admissibility issues instead of dealing with facts which should be properly before them
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…
[28] Allowing this conduct to go uncensored would harm the standing of the legal
profession. Documentary evidence sworn before lawyers would lose its value if the
public and the courts became aware that scrupulous adherence to rules of swearing such
documents was not being practised.
19.
It appears the member adopted the procedure he used to notarize the declaration
in order to save time. The member’s breach was unintentional as he did not
appreciate the need to strictly adhere to the formalities. The procedure he used
was unacceptable and fell well short of the standards the Society expects of its
members.
20.
In The Society of Notaries Public of BC v. Ma (February 2011), the member in
that case received a reprimand, the maximum fine of $5,000 and a suspension of
two weeks. However, it is noted that in that case, the member made a false
attestation albeit unintentionally.
21.
Given the admissions and agreed facts, the directors find that the member has
breached the Act and Rules as described in the Notice of Inquiry and that his
actions constitute professional misconduct.
22.
The Board agrees with the comments of the inquiry panel regarding the gravity of
the offences and the importance of strictly adhering to the formalities involved
with notarizing documents.
Penalty
23.
After deciding the issue of liability, as the member did not appear at the inquiry
the report recommended accepting a joint recommendation on penalty.
24.
At the hearing before the Board, the member attended with his counsel and
delivered a statement in which he expressed remorse and apologized to the
Society for the conduct in question. He indicated that he has since implemented
an office system designed to prevent such instances from occurring again.
25.
The Board was impressed with the member’s statement and the steps he has taken
to improve his office procedure.
19.
The member is relatively new and has no discipline history.
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20.
In view of the agreed statement of fact, the joint submission on penalty, and the
lack of discipline history, the directors have assessed the following penalty in this
matter:
a. The member be reprimanded;
b. The member be suspended for a continuous period of two weeks to be served at
a time to be agreed by the parties but to be completed within 60 days of
acceptance of this decision;
c. The member pay a fine of $2,000;
d. The member complete an approved ethics course at his own cost, on or before
March 31, 2013.
By Agreement between the Member and the Society, the Member will serve his suspension
from and including November 2, 2012 to and including November 18, 2012.
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