Recently, the Law Society of Ontario (“LSO”) released guidance about how it will interpret the requirements of the Commissioners for taking Affidavits Act (the “Act”) during the pandemic. In this article, we discuss practical tips for implementing the LSO’s guidelines on virtual commissioning into your estate litigation and administration practice.
The Act requires an oath to be taken “in the presence of” the commissioner. Since it would be very difficult, and sometimes impossible, to take an oath in person while social distancing measures are in effect, the Law Society’s Frequently Asked Practice Management Questions about Covid-19 (“FAQ”) provides guidance on how it will treat the requirements of the Act during the pandemic.
The FAQ document is clear that the best practice remains for commissioning to be done in the physical presence of the affiant. However, during the pandemic, the Act’s requirement that “every oath and declaration shall be taken by the deponent in the presence of the commissioner or notary public” is being interpreted by the LSO to allow for commissioning via video conference. The caveat is that the associated risks, like fraud and identify theft, should be evaluated by the commissioner when doing so.[i]
Keep in mind that the LSO does not have the legislative power to amend the Act.[ii] Thus, its guidelines provide information about how the LSO will be interpreting the wording of the Act while exercising its own mandate and powers. This does not necessarily equate to virtual commissioning being legal for all purposes. It remains to be seen whether courts will accept electronically commissioned affidavits and if so, for what purposes and if so, and whether practices will vary from court house to court house.