Commissioning and Notarization
- Sahil Bhardwaj
- Feb 3, 2021
- 4 min read
Yes, provided that certain conditions are met. Legislative Amendments Now Permit Remote Commissioning: In Ontario, commissioning, including remote or virtual commissioning, is governed by the Commissioners for Taking Affidavits Act (the “Act”) and is not regulated by the Law Society. Effective August 1, 2020, section 9 of the Act provides that: • an oath or declaration must be taken by the deponent or declarant in the physical presence of the commissioner, and • where a commissioner is not in the physical presence of the deponent or declarant, the commissioner may administer the oath or declaration remotely if the conditions set out in O. Reg. 431/20, Administering Oath or Declaration Remotely (the “Regulation”), are met. Conditions for Remote Commissioning: Lawyers and paralegals who wish to engage in remote commissioning must meet the following conditions as prescribed under section 1 of the Regulation: 1. See, Hear, and Communicate in Real Time. The commissioning must take place by an electronic method of communication in which the commissioner and the deponent can see, hear, and communicate with each other in real time throughout the entire transaction. 2. Confirm Deponent’s Identity. The commissioner must confirm the identity of the deponent. 3. Use a Modified Jurat. The commissioner must use a modified version of the jurat that indicates commissioning was administered in accordance with the Regulation, and the location of the commissioner and the deponent at the time of commissioning. For an example of a modified jurat for a remotely commissioned document, see the Ministry of Attorney General’s Guide for Newly Appointed Commissioners for Taking Affidavits [See disclaimer]. 4. Ensure Deponent’s Understanding. The commissioner must take reasonable precautions in the execution of the person’s duties, including ensuring that the deponent understands what is being signed. 5. Maintain Record of Remote Commissioning. The commissioner must keep a record of the transaction. In addition to satisfying the Regulation’s requirements, lawyers and paralegals who choose to use remote commissioning should also be alert to the risks associated with remote commissioning and consider adopting the risk mitigation strategies outlined below in the FAQ: “How should a lawyer or paralegal remotely commission documents? Last updated: August 1, 2020
When engaged in remote commissioning, lawyers and paralegals must comply with the conditions set out in the Regulation and outlined above (see FAQ: “Can a lawyer or paralegal use remote or virtual commissioning?").
Lawyers and paralegals should also be aware of the risks associated with remote commissioning and take steps to mitigate those risks. This includes developing or adopting best practices and/or using a checklist.
Risks of Remote Commissioning:
If a lawyer or paralegal chooses to use remote commissioning, the lawyer or paralegal should be alert to the risks of doing so, which may include the following issues:
Fraud
Identity theft
Undue influence
Duress
Capacity
Client left without copies of the documents executed remotely
Client feels that they did not have an adequate opportunity to ask questions or request clarifying information about the documents they are executing.
Practice Tips for Mitigating Risks:
To manage some of the risks:
Consider whether there are red flags of fraud in the matter. To review these red flags, see the Federation of Law Societies’ Risk Advisories for the Legal Profession resource. [See disclaimer.]
Assess whether there is a risk that the client may be subject to undue influence or duress. If there is such a risk, consider if you can assist the client at this time without meeting in person.
Consider whether the deponent requires accommodations or there are any special circumstances to address and take appropriate steps. For more information, review the “Special Cases” section of the Ministry of Attorney General’s Guide for Newly Appointed Commissioners for Taking Affidavits. [See disclaimer.]
Determine how to provide the client with copies of the document executed remotely.
Confirm your client’s understanding about the documents they are executing and provide adequate opportunity for them to ask questions during the video conference.
Be alert to the fact that persons may attempt to use the current circumstances and resulting confusion as an opportunity to commit fraud or other illegal acts. Where lawyers and paralegals choose to use remote commissioning, they must be particularly alert to these red flags in order to ensure that they are not assisting or being reckless in respect of any illegal activity.
Use best practice resources to guide and document the remote commissioning process.
Best Practice Resources for Lawyers and Paralegals:
Lawyers and paralegals should consider developing or adopting best practices and/or a checklist to:
Ensure a consistent process is used and documented, and
Mitigate the risks associated with not being in the physical presence of deponents.
The following resources have been prepared and recently updated by the Law Society to assist lawyers and paralegals:
Best Practices for Remote Commissioning
Remote Commissioning Checklist
Remote commissioning is a new practice and is expected to evolve as new remote meeting platforms and security safeguards are developed. The Law Society will continue to explore potential enhancements and will update its guidance as appropriate.
Last updated: August 1, 2020
This guidance replaces the guidance that the Law Society had provided during COVID-19, prior to the Notaries Act amendments coming into force.
Notarizing is governed by the Notaries Act (the “Act”) and is not regulated by the Law Society. Lawyers and paralegals acting as a notary public are required to comply with the requirements set out in the Act.
Effective August 1, 2020, amendments to the Act allow for remote notarization if regulations made under the Act so provide and the conditions set out in the regulations are met.
Regulations permitting or setting out conditions for remote notarization have not yet been made. As a result, the Act does not permit lawyers and paralegals to remotely notarize documents at this time.
The Law Society will provide updates to the legal professions about remote notarization if regulations are introduced.
Note: Amendments to the Commissioners for Taking Affidavits Act and a new Regulation on remote commissioning also came into force on August 1, 2020. These amendments and the Regulation enable remote commissioning if the conditions set out in the Regulation are met. For more information see the above FAQs on Commissioning.
Last updated: August 1, 2020
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