Canada joins the Apostille Convention: What you need to know
On May 16th 2023, Global Affairs Canada announced that Canada has formally joined the Convention Abolishing the Requirement of Legalization for Foreign Public Documents (the “Apostille Convention”). The Apostille Convention will come into effect in Canada on January 11, 2024.
Canada’s accession to the Apostille Convention will allow, among others, those conducting business in Canada to forego having Canadian public documents legalized by a consular officer at the destination country’s embassy or consulate in Canada. Instead, public documents can be submitted to select authorities designated by the federal government that will be able to issue an authenticity certificate, called an apostille, which will enable the document for use in any of the 124 other countries that are signatory to the Apostille Convention.
Scope of the Apostille Convention
The Apostille Convention facilitates the use of public documents across signatory jurisdictions by replacing the traditional and burdensome legalization process with the issuance of a single apostille. An apostille is issued by the country where the document originates and serves to authenticate the origin of a public document when it is presented in another signatory jurisdiction to another governmental body or private party. As with current processes, an apostille does not certify in any way the content of the underlying public document: its purpose is restricted to certifying the authenticity of origin, including authenticity of a signature (including the capacity in which the signatory has acted) or stamp/seal affixed upon the document.
The Apostille Convention's scope is restricted to “public documents”. This term is not expressly defined in the convention; rather, the public nature of a document is determined by the law of the place where the document originates. Article 1 of the Apostille Convention provides examples of public documents, including:
- documents issued by governmental authorities, courts or tribunals (e.g., birth and marriage certificates, corporate certificates of good standing and court documents);
- administrative documents (e.g., corporate records, civil status documents, extracts from official registers, grants of license and patent, and certificates from administrative authorities);
- notarial acts; and
- official certificates which are placed on documents signed by persons in their private capacity, such as official certificates recording the registration of a document or the fact that it was in existence on a certain date, and notarial authentications of signatures.
As a general rule, if a document was subject to legalization prior to the entry into force of the Convention, or if it remains subject to legalization because it is to be produced in a non-contracting state, it is likely to qualify as a public document under the Apostille Convention.
Obtaining an Apostille in Canada
Apostilles, whether electronic or in paper form, must be issued by a designated “competent authority” in accordance with Article 6 of the Apostille Convention. Accordingly, those wishing to obtain an apostille in Canada will still have to attend to select government offices in order to complete the certification process.
At this time, the Government of Canada has designated the following authorities to issue apostilles once the Apostille Convention comes into force in early 2024:
- the Department of Foreign Affairs, Trade and Development;
- the Ministry of the Attorney General of British Columbia;
- the Ministry of Justice of Alberta;
- the Ministry of Justice and Attorney General of Saskatchewan; and
- the Ministry of Public and Business Service Delivery of Ontario.
The Government of Canada can update the list of competent authorities at any time. Accordingly, the list of provinces with a ministry designated as a competent authority may expand in the lead up to the Apostille Convention coming into force in Canada or after the Apostille Convention is in effect.
Canada’s accession to the Apostille Convention will provide those conducting business in Canada with a streamlined and cost-effective process to certify certain documents for use in 124 other countries. Four provincial ministries and the federal Department of Foreign Affairs, Trade and Development are currently designated to provide apostilles beginning January 11, 2024. Further information about the process of obtaining an apostille in Canada is expected later this year, in advance of the Apostille Convention coming into effect. Until then, businesses should continue following currently accepted authentication processes in the jurisdictions where they are seeking to authenticate documents originating from Canada.
We are here to help
McCarthy Tétrault is prepared to provide clients with a full suite of business advice and support, including in respect of the certification of business documents for use in other jurisdictions. To learn more, please contact the authors and we would be happy to assist you.