In this day and age, it is hard to believe that we still cannot commission affidavits virtually or remotely in Canada. One would think that with all the advances in technology, this would be possible. However, even if the technology exists to allow the commissioning to be done virtually or remotely, our regulations, courts, and regulatory bodies are currently of a different view.

Commissioning affidavits is governed by the Commissioners for Taking Affidavits Act in Ontario, which is provincial legislation. Section 9 of this Act requires that an oath (or declaration) be taken by the deponent in the presence of the commissioner.

The commissioner has to verify the identity of the deponent, administer an oath, satisfy himself or herself of the genuineness of the signature of the deponent, and execute a jurat, confirming the date and the location where the affidavit was signed.

Where are we at today?

The Commissioners for Taking Affidavits Act, unfortunately, does not define what “in the presence of” means and does not specifically allow for virtual or remote interactions.

To date, Canadian courts and regulatory bodies (at least the decisions that have been reported) have not allowed for virtual commissioning. Three examples are as follows:

  • First Canadian Title Company Limited v. The Law Society of British Columbia ([2004] BCSC 197) dealt with witnessing of a mortgage instrument pursuant to the BC Land Title Act through the use of interactive videoconferencing. The lawyer used an identification code for the document being signed (to ensure the same document was being signed), and also took digital photos of the borrower signing the document (which pictures were date and time-stamped). This was still not sufficient.
    The concerns of the BC Ethics Committee, which were ultimately accepted by the British Columbia Supreme Court, were as follows:

    • The lawyer cannot know what document the signer is signing and cannot know for certain that the paper the lawyer must sign was the paper signed by the person who executed the document;
    • Off-screen influences and the lack of proximity may detract from the lawyer’s ability to verify the identity of the person who signed the document.
  • Law Society of Saskatchewan Ethics Rulings ([2017 SKLSPC 3 and 4) which although made note of the fact that there is an opportunity for change by way of legislative change, went on to note that certain documents cannot be signed via technology due to legislation (i.e. testamentary documents). The ruling also made reference to the First Canadian Title Company Limited case above and reiterated that “in the presence of a lawyer” means that the client is in the physical, presence of a lawyer.
  • In an E-Bulletin by the Law Society of Ontario (“LSO”) entitled “Virtual Commissioning”, the LSO’s practice direction is that without legislative change, lawyers and paralegals should only commission in the physical presence of the deponent.

What will the future hold?

Under Bill 161, Smarter and Stronger Justice Act, 2019 (first reading on December 9, 2019), the Ontario Government recently proposed amendments to the Commissioners for Taking Affidavits Act.

The proposed changes under section 9 of the Commissioners for Taking Affidavits Act will allow an affidavit to be commissioned without the deponent being in the presence of the commissioner if regulations are made regarding same, and the conditions set out in those regulations are met.

There is also a caveat: the Ontario Government’s Backgrounder website states that the above changes “will be effective once appropriate data and privacy safeguards are put into place by regulation”. It is unclear if, and when, such regulations will be put in place, assuming Bill 161 is passed.

The processes should keep in mind potential electronic methods of verification and signature. When we eventually get there, here are some safeguards our legislation/regulations might consider:

  • A description of where the commissioner may perform the commissioning virtually, for example, the commissioner must be physically in a province where he or she is authorized to commission during both the video conference and when the document is signed by the commissioner.
  • A description of what the technology must consist of, for example, it must have both audio and video capability, and it must be done in real-time.
  • The requirement that the commissioner satisfy himself or herself of the identity of the deponent, perhaps by obtaining copies of two photo ID’s in advance and confirming the deponent’s identity during the video conference by asking them personal questions and by identifying them from their picture. Or perhaps some form of electronic verification.
  • The requirement that both the commissioner and the deponent have a copy (paper or virtual) of the document being signed in front of them during the video interaction.
  • The requirement that the document being signed be displayed by the deponent on the video screen and/or read in its entirety during the interaction before it is signed by the deponent.
  • The requirement that the live video capture the deponent signing the document and his or her signature on the document.
  • The requirement that the deponent be displayed on the video screen during the entire interaction in such a way that the commissioner is able to also determine if anyone else is present in the room, in order to avoid any undue influence.
  • Specific provisions outlining virtual commissioning for remotely located individuals who have vision, hearing, and/or speech impairment, for example, a visual transcription of the discussions.
  • Specific provisions regarding how the signed document will be sent to the commissioner for his or her signature, perhaps by courier, or registered mail (especially if an original signature will continue to be required).
  • The requirement that the commissioner take the necessary steps in order to satisfy himself or herself that the document being commissioned is the exact same one that was displayed on the video/read on the video conference.
  • The requirement that the jurat specifically state that the affidavit was commissioned virtually and in accordance with the relevant legislation/regulations.

With a number of US states putting in place processes to allow for virtual or remote swearing of documents, it seems inevitable that we will eventually do the same in Canada.