Must a notary determine if a person signing before the notary understand what they are signing? Perhaps

Tondera v. Vukadinovic, 2011 ONCA 596 is a somewhat concerning decision for commissioners of oaths and notaries. A notary notarized certain documentation and (likely) ensured the persons signing the documents were who they were purported to be. She (or it is pleaded) did not ensure they persons signing understood its contents. A claim was made saying a notary had a duty to ensure the persons attending before the notary knew what they were doing; the Court of Appeal said, in these specific circumstances, such duty may exist. The Court holds:

[7] While not a model pleading the gist of the appellants' argument is apparent. They submit that Fox knew that the presence of her signature on the document would cause the authorities in the Federal Republic of Yugoslavia to accept that the document was signed in her presence and therefore give it legal effect. In these unique circumstances, they say Fox owed them a duty of care both to have them sign in her presence and to insure that they understood the document. Both arguments rest on the common law of negligence and not just the Notaries Act. The appellants allege Fox breached both duties and caused them harm.

[8] The factual dispute about whose signature(s) Fox was appearing to certify is a matter requiring resolution. On its face, the document is ambiguous. Evidence will be required to resolve this. Indeed a trial may be required. The result may well be that by notarizing the document, Fox was representing that the appellants signed in her presence and understood the document.

[9] We cannot say, in these particular circumstances that there can be no duty of care owed by Fox to the appellants when she affixed her signature as a notary to the document in their absence, knowing the legal effect her signature would carry in the Federal Republic of Yugoslavia and without enduring their understanding. In our view, it is not plain and obvious that the appellants cannot succeed.