To keep citizens safe, Ontario has deemed certain businesses essential and requested all other businesses to close their physical locations. Subsequently, the Law Society of Ontario (LSO) has created new regulations to allow those who provide legal services to work from home and to conduct many essential duties online, one of which is commissioning documents. This is a positive development to ensure that the wheels of justice are still turning.
How to Commission a Document
Under Section 1(1) of the Ontario Commissioners for Taking Affidavits Act, any person who is licensed under the Law Society Act to practice law in Ontario are commissioners and are entitled to administer oaths and take affidavits and statutory declarations. Below are the steps to properly commission a document:
Step 1: The commissioner must first verify the identity of the deponent by asking for a piece of valid government issued identification. This may include Health Card, Passport or Driver’s License.
Step 2: The deponent is given two options when executing an affidavit under the Evidence Act, the first is to swear on a religious book and the second is to make an affirmation or declaration. The commissioner should ask the deponent which method they prefer.
Step 3: The next step in commissioning an affidavit or a statutory declaration is to read the contents of the document to the deponent and have them either swear or affirm the contents. The deponent will then sign the document in the presence of the commissioner.
Virtual commissioning is an authentication and signature process for taking affidavits and statutory declarations that use audio-visual technology. It is therefore not conducted in the physical presence of the commissioner. An example of virtual commissioning is a lawyer who meets with a client via Skype® or FaceTime® and directs the client to sign the relevant legal document that is visible to the lawyer through video. The client then returns the original executed document to the commissioner who, upon receipt, signs the document as a witness to the client’s signature. Another example is a client and a commissioner logging into the same platform to view and electronically sign the same document simultaneously, despite being in different physical locations.
Virtual Commissioning – Developments and Limitations
It is important to note that commissioning is governed by the Commissioners for Taking Affidavit Act and not regulated by the LSO, however with the recent changes due to COVID-19, the LSO has decided to interpret the requirement of “every oath and declaration shall be taken by the deponent in the presence of the commissioner or notary public” as not requiring the legal representative to be in the physical presence of the client, thus allowing virtual commissioning.
Furthermore, the Attorney General has advised that an emergency Order in Council has been made under section 7.1 of the Emergency Management and Civil Protection Act. This permits virtual witnessing for wills and commissioning of affidavits.
The case of Law Society of Upper Canada v. Billy Wong, 2009 ONLSHP 60 sets out the extent to which a lawyer can virtually commission a document. In this case, the lawyer commissioned a document over the telephone in the City of Toronto when the client was in Malaysia. The affidavit stated that it was signed in Toronto, Ontario which was false. The Law Society found that this was not sufficient enough to virtually commission a document.
Risks Associated with Virtual Commissioning
With virtual commissioning, the commissioner uses web-based video technology to commission documents. Virtual Commissioning is when a Lawyer or Paralegal meets with a client via Skype, Facetime, Google Hangouts, or any other video communication technology to sign the relevant legal document. The client then returns the original executed document to the Lawyer or Paralegal, who will then sign the document as a witness to the client’s signature. To assist Lawyers and Paralegals navigate virtual commissioning, the LSO has posted the Best Practice Recommendation. Some of the most common risks of virtual commissioning that Lawyers and Paralegals should be aware of are fraud and identity theft, undue influence, reduced level of client services and technological limitation and uncertainty, to name a few.
There are many ways a Lawyer or Paralegal may reduce the above-noted risks. The first and most effective way is to consult the Risk Advisories for the Legal Profession to assist with the identification of the most common red flags that may occur. Before commencing the process of commissioning an affidavit, it is important for a legal professional to assess whether there is a risk or whether the client may be under undue influence or duress. If there is any indication of risk, duress or undue influence, the Lawyer or Paralegal shall determine if they are able to assist without meeting in person. If they cannot assist remotely, it is recommended that the legal professional meet the client in person to commission the affidavit. It is also important for the Lawyer or Paralegal to determine the best method to provide the client with copies of the executed documents remotely. Finally, it is important to confirm the client’s understanding of the document that they are executing and provide them with ample opportunity to ask questions.
The LSO reiterates that the best practice is to commission documents in the physical presence of the client, however with these uncertain times it is acceptable to virtually commission documents to limit the risk of spread of COVID-19.