Commissioning Affidavits by Video or Skype

There has been a bit of discussion on a couple of Canadian lists lately of the appropriateness of commissioning an affidavit (or declaration or affirmation) by video link or by Skype (which is just another form of video, at least for the purposes of this question, is it not?).

Ontario law, and most other Canadian common law at least, requires that the person making the affidavit must be “in the presence of” the person commissioning it (notary, lawyer, commissioner for taking affidavits). See Commissioner for Taking Affidavits Act (Ontario) s. 9.

Question: Is one sufficiently “in the presence” of the commissioner if the commissioner can see and hear the affiant/deponent by video link or by videophone link as with Skype video?

Affidavits taken by telephone alone (i.e. voice connection) have been held in a New York court not to have been properly done.

Consider also the language of s. 138 of the Criminal Code of Canada:

Every one who

(a) signs a writing that purports to be an affidavit or statutory declaration and to have been sworn or declared before him when the writing was not so sworn or declared …

is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years

So: not just “presence” but “before him” [no doubt 'or her'] – how virtual may that be?

Second question: If you believe that a video appearance is not sufficient to support commissioning, should it be? Are there safeguards required, and do we want to start fine tuning a well-known requirement to adapt it to the electronic age?

Implementation question: How well would the commissioner have to be able to see the document signed by the affiant in order to know that what he/she later got on his/her desk for commissioning was the same document?

Question for advanced students: what difference would or should it make if the affiant and the commissioner were in different jurisdictions? Would it matter in which jurisdiction the affidavit was to be used?

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Comments

  1. David J. Bilinsky

    John:

    The position in British Columbia:

    Law Society of British Columbia’s Benchers Bulletin, 2004: No. 2 March-April

    First Canadian Title Company Limited v. The Law Society of British Columbia

    Lawyers may not witness signatures via videoconference: BCSC

    In February the BC Supreme Court dismissed the petition of First Canadian Title Company Ltd. and approved the opinion of the Law Society Ethics Committee that the requirements for a lawyer to witness a document as an officer under the Land Title Act cannot be met by interactive videoconferencing: see First Van Title Co. v. Law Society of BC, 2004 BCSC 197.

    In 1999 First Canadian Title launched a program with certain mortgage lenders in BC that permitted borrowers to sign mortgage documents in the offices of those lenders. A lawyer retained by First Canadian Title witnessed and certified the mortgage instruments via a live interactive videoconferencing link, instead of being physically present in the offices of the lenders. On March 2, 2000, at the request of First Canadian Title, the Ethics Committee met to consider whether a lawyer in BC could properly witness a document via live interactive videoconferencing.

    The Committee took note of the fact that, in 1996, it had identified the minimum obligations of a lawyer acting as a witness under section 43 of the Land Title Act and under the Professional Conduct Handbook as being:

    * to identify himself or herself as a lawyer;
    * to verify the identity of the borrower in accordance with section 43 of the Land Title Act; and
    * to advise the borrower that the lawyer is not protecting the borrower’s interests.

    In considering the issue of a lawyer witnessing a signature via live videoconferencing, the Ethics Committee issued an opinion that certain of the witnessing requirements could not be met:

    * A 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.

    The Committee concluded that the words “appeared before” in section 43 of the Land Title Act require an actual physical appearance before the officer, and not an appearance by means of videoconferencing technology.

    As a consequence, First Canadian Title voluntarily suspended the practice of witnessing documents via interactive videoconferencing in 2000 pending the outcome its petition.

    In dismissing the petition, the court approved the opinion of the Ethics Committee. The court also agreed with the position of counsel for the Attorney General that permitting documents to be executed at one location and sent to another location for completion by a witness would provide increased opportunities for fraud and would therefore increase the exposure of the Land Title Assurance Fund to claims. It was the position of the Attorney General that such a change should only be adopted after full consultation with all affected parties.

  2. And that’s just being a witness. Presumably serving as a commissioner for an affidavit is an even stronger case in the same sense, as the document is a public document (within the meaning of the Apostille Convention anyway – not sure the term has much sense in a common law jurisdiction otherwise), and the commissioner is supposed to identify the signer with some certainty and understand the oath, declaration or affirmation to be genuine and unforced.