Commissioning is governed by the Commissioners for Taking Affidavits Act and is not regulated by the Law Society of Ontario. Although the law is evolving in this area, the best practice for commissioning documents remains for the person who is acting as a commissioner to be in the physical presence of the deponent to commission the document(s).
However, as a result of COVID-19, and until further notice, the Law Society of Ontario will interpret the requirement in section 9 of the Commissioners for Taking Affidavits 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. If lawyers and paralegals choose to use virtual commissioning, they are should attempt to manage some of the risks associated with this practice.
Virtual commissioning is an authentication and signature process for taking affidavits and statutory declarations that uses 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 lawyer who, upon receipt, signs the document as a witness to the client’s signature. Another example is a client and a lawyer logging into the same platform to view and electronically sign the same document simultaneously, despite being in different physical locations.
Some of the risks associated with Virtual Commissioning include:
- Fraud;
- Identity theft;
- Undue influence;
- Duress;
- Capacity;
- The client is left without copies of the documents executed remotely;
- The client feels that they did not have an adequate opportunity to ask questions or request clarifying information about the documents they are executing.
In order to manage some of these risks, one should consider the following:
- Are there any red flags of fraud? Be alert that persons may attempt to use this uncertain time to commit fraud or other illegal acts. Lawyers should be alert in order to ensure that they are not assisting, or being reckless in respect of any illegal activity.
- Assess whether there is a risk that the client may be subject to undue influence or duress.
- Determine how to provide the client with copies of the document executed remotely.
- Confirm the client’s understanding of the documents they are executing and provide the opportunity to ask questions during the video conference.
There is no prescribed process in commissioning documents virtually. However, the Law Society of Ontario has provided guidelines to ensure a consistent process is used and documented in order to mitigate risks associated with not being in the physical presence of deponents. One can find sample materials that have been prepared by the Law Society to assist with this process as set out below. They should be used in order to guide commissioners through the virtual commissioning process.
Best Practices for Virtual Commissioning during COVID-19
Virtual Commissioning Checklist
On May 12, 2020, the Ontario legislature passed an omnibus bill, COVID-19 Response and Reforms to Modernize Ontario Act 2020, which codified the process for remotely commissioning or notarizing a document.