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.
Justice Brown nostalgically opens his reasons for decision in Wallbridge Estate, 2010 ONSC 3409 (CanLII) as follows:
“Those of a certain vintage may remember the television ad for a certain brand of breath mint. As the voice-over pronounced, “Two, two, two mints in one”, the two rolls of breath mint merged into one. Does the principle of “two mints in one” apply to probate applications? More specifically, can the Estates Office process an application for a certificate of appointment of estate trustee with a will when the applicant has placed required information in one affidavit, instead of the two stipulated by the Rules of Civil Procedure?
After succinctly summing up the question, Brown J. provides the answer: Yes.
In Wallbridge, the applicant for a Certificate of Appointment filed an affidavit that indicated that the Will in question was signed in the presence of two witnesses, and also that there were certain changes to the Will after it was signed. The Application was rejected because, although the necessary information was provided, the Applicant did not submit an Affidavit of Execution and a separate Affidavit of Condition. The matter was then placed before Justice Brown.
In his decision, Justice Brown cited extensively from his decision in Estate of Michael O’Flynn (See blog here). There, Brown J. allowed a party to combine a Renunciation, Consent to Appointment and Consent to Dispense with Bond form into one document.
In Wallbridge, Brown J. noted that the affidavit evidence complied with requirements of the legislation (if not the Rules).
He also noted three additional reasons for granting the Application. Firstly, the Court failed to communicate with the Applicant’s counsel by email, which resulted in a waste of time. Secondly, the Applicant was dying of cancer: urgency was required. Thirdly, Brown J. referred to his O’Flynn decision and his complaint that the court was locked in the past with its reliance on a paper culture. Despite the concerns raised by Brown J. in O’Flynn, nothing to address the issue had been done. However, as a judge, he was constrained as to what he could do to address the problem. Thus, in addition to being satisfied that the technical requirements of the Succession Law Reform Act were complied with, he dispensed with compliance with the Rules “out of sheer frustration that those in higher places in government who can take steps to improve the efficiency of the probate system in this province, and thereby enhance access to justice for the Ontario public, are not doing so.”
(As an aside, Certs, the mint referred to by Brown J. in his opening paragraph, has been ruled to be a breath mint, as opposed to a candy mint, by the U.S. Court of Appeals for the Federal Circuit in Washington.)
Thanks for reading.
Paul E. Trudelle – Click here for more information on Paul Trudelle.
Listen to Deductions from Compensation.
This week on Hull on Estates and Succession Planning, Ian and Suzana finish up the discussion on the question of accounting by reviewing deductions from compensation and briefly sum up the procedure of the passing of accounts.
Listen to The Formal Passing of Accounts.
This week on Hull on Estate and Succession Planning, Ian and Suzana talk about the specifics of what happens when you have to go to court to formally pass accounts.
Listen to The Process of Administering an Estate
This week on Hull on Estate and Succession Planning, Ian and Suzana talk about the first, pre-probate stages of administering an estate.