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Ontario Law Society relaxes “in person” affidavit rule during epidemic

Tuesday, 31 March, 2020

The Ontario Law Society has issued a special advisory that during the coronavirus epidemic it will interpret the “in person” rule in s.9 of the Commissioners for Taking Affidavits Act as not requiring the lawyer or paralegal to be in the physical presence of the client when swearing an oath or declaration.

Canada's federal government has already enacted some sector-specific laws such as those recognizing electronic signatures in the Canada Business Corporations Act, and for the financial institution sector, while Quebec has passed its own law to facilitate electronic transactions. However the country's common-law courts have not always recognised some forms of electronic evidence as being legal, especially where it could not be properly authenticated or be shown to be reliable, says Barry Sookman of law firm McCarthy Tetrault LLP. Moreover, existing legislation regarding electronic signatures often has exclusions. For example, the Ontario Electronic Commerce Act does not apply to wills and codicils, certain trusts, financial and healthcare powers of attorney or negotiable instruments.

But with the outbreak of coronavirus there are increasing pressures to use electronic methods to effect legal activities, including to enter into agreements traditionally done using paper and for other things such as signing and commissioning affidavits for use in courts, says Sookman. Unfortunately, both the Canadian Federal Court and courts in the provinces and territories have different rules, particularly as they relate to whether an affidavit has to be sworn “in person” before the commissioner for taking oaths.

The epidemic has thus led the Ontario Law Society to modify its guidance regarding s.9 of the Commissioners for Taking Affidavits Act, which requires “every oath and declaration shall be taken by the deponent in the presence of the commissioner or notary public.” The new guidance acknowledges that, for the time being, this does not require the commissioner to be in the client's physical presence.

Alternative means of “virtual commissioning” such as by videoconferencing will be permitted, subject to certain risk management procedures, says the society. These include:

  • Checking whether there are “red flags of fraud” in the matter;
  • Assess whether there is a risk that the client may be subject to undue influence or duress. If there is such a risk, consider if you are able to assist the client at this time without meeting in person.
  • Determine how to provide the client with copies of the document executed remotely.
  • Confirm the client’s understanding about the documents they are executing and provide adequate opportunity for them to ask questions during the videoconference.
  • Be alert to the fact that some persons may attempt to use the current circumstances and resulting confusion as an opportunity to commit fraud or other illegal acts.

The society is being cautious about the effect of its new guidance, warning lawyers and paralegals to review their court or tribunal's website for practice directions about whether requirements for affidavits are being modified in the context of the epidemic.

It also notes that it does not have jurisdiction to change lawyers' obligations in respect of the execution of wills. It refers lawyers to a paper written by Ian Hull TEP in a blog post, Execution of Wills during COVID-19, describing a new process for signing wills during the epidemic while remaining compliant with Ontario's Succession Law Reform Act. Another possibility for a client in isolation is to write a holograph will, it says.

Sources

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