On January 15, 2020, shortly before the pandemic, I wrote the blog Virtual Commissioning: Are We There Yet? Since then, and in such a short period of time, a lot has changed in virtual commissioning.

At the time I wrote the January blog, under Bill 161: Smarter and Stronger Justice Act, 2019 (the first reading was on December 9, 2019), the Ontario government had proposed amendments to the Commissioners for Taking Affidavits Act. At the time, virtual commissioning was not expressly permitted in the legislation or by the courts. In fact, it was discouraged.

In March 2020, the world found itself in the middle of a pandemic. This meant that for those professionals who continued to work during the pandemic, we had to adapt to the new normal, and conduct many of our meetings virtually.

Recently, the government has enacted a regulation that deals with administrating oaths or declarations remotely, something I did not anticipate we would see this quickly when I wrote my blog back in January. Having said that, it is quite short and leaves many questions unanswered.

Pursuant to O. Reg 431/20: Administering Oath or Declaration Remotely, an oath or a declaration may now be taken without being in the physical presence of the person administrating the oath or the declaration if the following conditions are met:

  1. The oath or declaration is being administered by an electronic method of communication in which the person administering the oath or declaration and the deponent or declarant are able to see, hear, and communicate with each other in real-time throughout the entire transaction;
  1. The person administering the oath or declaration confirms the identity of the deponent or declarant;
  1. A modified version of the jurat or declaration is used that indicates:

    a. That the oath or declaration was administered in accordance with the Regulation; and

    b. The location of the person administering the oath or declaration and of the deponent or declarant at the time of the administering.

  1. Where the commissioner uses a stamp, the information on the stamp required to be used must appear on or in the document being signed.
  1. The person administering the oath or declaration takes reasonable precautions in the execution of the person’s duties, including ensuring that the deponent or declarant understands what is being signed.

The Regulation further adds that every person who administers an oath or declaration in accordance with the Regulation shall keep a record of the transaction.

There is still no requirement that the transaction be recorded. However, in certain circumstances, the commissioner may wish to record the transaction. If the transaction is going to be recorded, the commissioner must ensure the deponent understands that the transaction is being recorded, and confirm the deponent’s consent to the transaction being recorded.

Nothing in the Regulation prohibits the use of electronic signatures when commissioning virtually (for example, documents signed through programs such as DocuSign). That is not to say that e-signatures will be accepted down the road. If the signature is being done electronically, you must ensure at the very least that you adopt strategies to ensure you are still in compliance with the legislation.

The Law Society of Ontario and LawPRo have their own guidelines and best practices that they suggest be adopted by commissioners. It is important for anyone doing remote commissioning to read those, as well as the applicable legislation, from time to time, in order to ensure they are up to date, and to ensure they adopt additional risk mitigation strategies.

At the end of the day, the other parties are not obligated to accept remotely commissioned documents. It is always best to confirm whether or not they will accept such documents in advance.

There are still many questions that are left unanswered regarding what is acceptable, the exact steps that must be followed when commissioning virtually, and which practices will prove to be problematic down the road. It will be interesting to see how the courts will deal with remotely commissioned documents, especially documents that are signed electronically.

Mana Khami is a partner at Harrison Pensa and one of the company’s most active community contributors. Mana provides practical advice and careful guidance to individuals, corporations and municipalities on a wide range of legal topics. Connect with Mana on LinkedIn.