“Modernizing Ontario”: Bill 190 and Amendments to Practice

May 19, 2020 Garrett Horrocks Uncategorized Tags: , , , , , , 0 Comments

As Ontario begins to witness a glimmer of relief from the ongoing COVID-19 pandemic, one cannot help but notice how the outbreak has forced the hand of many industries towards modernization, and law is no exception.  Our firm has blogged extensively over the past two months on the multitude of changes to estate planning practices, litigation, and the practice of law in the province, more generally, the implementation of which is directly attributable to the new business reality.  Wills may be executed in identical counterparts, rather than as a single a document, by way of audiovisual communication.  Motions and other court hearings are being conducted virtually, and materials to be filed in respect of those hearings can be filed with the court registrar electronically.

Most recently, Bill 190, the COVID-19 Response and Reforms to Modernize Ontario Act, 2020, received royal assent on May 12, 2020 and implements modest, but impactful, changes to numerous statutes.  These changes continue the trend of modernizing the practice of law to match the business realities of the circumstances by, for example, specifically authorizing or validating the electronic signature of certain documents, providing mechanisms for the filing of such documents, if need be, by electronic means, or generally allowing for certain practice components to proceed in a virtual capacity.  The legislative goals of Bill 190 fit with the province’s broader mandate, in the words of the attorney general, to have “modernize[d] the justice system 25 years in 25 days.

The Bill also includes a formal amendment to the Commissioners for Taking Affidavits Act to authorize a commissioner of oaths to administer an oath or declaration, generally in the form of an affidavit, without being in the physical presence of the deponent, provided the commissioner can “satisfy himself or herself of the genuineness of the signature.”  In other words, this amendment authorizes a commissioner to administer an oath or commission an affidavit by audiovisual means provided the signature, and the act of signing, are made visible to the commissioner.

This amendment reflects an interpretive directive issued by the Law Society of Ontario in March.  The prior version of this statute required both commissioner and deponent to be in the presence of one another for the oath to be validly administered.  Though physical presence was not a strict requirement under the prior version, it was considered to be an element of best practice.  In light of the recent restrictions in having a commissioner and a deponent meet together for the purposes of commissioning an oath, the Law Society issued this directive to ensure that the requirement could be satisfied in the absence of physical presence, thus authorizing the commissioning of oaths to proceed virtually.  The amendments to this act set out in Bill 190 simply serve as a more permanent statutory codification of the directive issued by the Law Society.

Please feel free to review our other blogs dealing with the practice of law in a post COVID-19 reality:

Witnessing Wills and POAs in Counterpart

Virtual Mediation

Legal Innovations during COVID-19: Are Virtual Platforms the Future?

Thanks for reading.

Garrett Horrocks

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