I’ve been a fan of paperless and virtual documents and signatures for a long time. Despite the advantages, many steadfastly stick to paper. Many are moving online, but are only partway there.
The transition to paperless and electronic signatures is not always easy, and there are roadblocks that can get in the way. Too often there are one or more steps in a process that require paper or a wet signature that bring things to a halt.
For example, in Ontario, we can get articles to create new corporations online, but to amend or amalgamate, we need 2 original paper copies with wet signatures. At least virtual AGMs are permissible.
Trademark applications are done online, but examiners reports in response to applications are sent by mail.
The business disruptions caused by COVID-19 are causing many to consider paperless, and many to scratch their heads trying to figure out how to deal with the roadblocks.
Ontario, like most provinces, has an Electronic Commerce Act that is based on a model law on electronic signatures. These acts basically say electronic signatures are functionally equivalent to wet signatures. But these acts carve out several exceptions. Wills for example. And negotiable instruments.
Wills and estate lawyers are doing the best they can to get wills signed and witnessed despite the need for physical distancing. The negotiable instruments carve out causes grief for financial institutions, as it means that promissory notes and many loan agreements must have wet signatures.
Swearing affidavits is an issue as well. Legislation requires the commissioner or notary to be “in the presence of” the person swearing the affidavit. That has always been interpreted to mean in the physical presence of each other. There are attempts to change that, but it is a slow process.
In light of the COVID-19 crisis the Law Society of Ontario and Lawpro – the entity that ensures lawyers – have both said lawyers can swear affidavits remotely under some circumstances without reprisals. An Ontario order in council has allowed the remote signing of wills under some circumstances. But these are temporary stopgap measures at best.
It is unfortunate that it takes a crisis like COVID-19 to move us farther into a paperless word. Hopefully, some of these legal hurdles will be addressed sooner rather than later.