Virtual Commissioning of Affidavits Now Permissible Subject to Appropriate Safeguards

March 24, 2020 David M Smith In the News Tags: , , , 0 Comments

The Law Society of Ontario (LSO) has issued a COVID-19 Response which is required reading for all members of the Bar.  As we have noted in many of our blogs posted since the onset of the pandemic, the delivery of legal services requires us all to adopt a new normal.  The LSO has provided guidance in its Response regarding the delivery of legal services remotely that would never previously have been considered other than in person.  As the LSO notes: “This is an unprecedented situation and some flexibility may be required to ensure continuity of essential legal services without undue risk to public health.”

Commissioning of affidavits has always been one such task performed in person.  The LSO has provided guidance on an appropriate departure from commissioning in the physical presence of the deponent.  It is worth noting that s. 9 of the Commissioner for Talking Affidavits Act (“the Act”) only speaks of the commissioner having to be in the presence of the deponent (the requirement for “physical” presence being a best practice but not an essential element of the statute).

Accordingly until further notice and as a result of COVID-19:

  • The LSO will interpret the requirement in section 9 of the Act that “every oath and declaration shall be taken by the deponent in the presence of the commissioner or notary public” as not requiring the lawyer or paralegal to be in the physical presence of the client.
  • Rather, alternative mean of commissioning such as commissioning via video conference will be permitted subject to management of risks associated with this relaxed practice including but not limited to: fraud, identity theft, undue influence, and capacity.

Virtual commissioning is a temporary measure that casts a burden on the lawyer to make extra enquires into the existence of one or more of these risks. The LSO sees the current circumstances as a regrettable opportunity for persons to attempt to commit fraud or other illegal acts.  Lawyers and paralegals must accordingly “be alert to red flags in order to ensure that they are not assisting, or being reckless in respect of any illegal activity.”  To protect against being an unwitting accomplice see the Federation of Law Societies’ Risk Advisories for the Legal Profession.

Thanks for reading.

David Morgan Smith

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