Commissioning Affidavits: The LSO Is Only Part of the Picture

To many people’s delight, the Law Society of Ontario has stated that it is interpreting section 9 of the Commissioners for Taking Affidavits Act to include virtual commissioning. Reponses to a Slaw post by Pulat Yunusov from last November, in support of the LSO’s then position against virtual commissioning were dismissive of his concerns about virtual commissioning; they also illustrate the eagerness with which people are keen to throw off the bonds of in-person commissioning. (Yunusov stressed the importance of the ritual, as well as the inability of meeting some requirements through technology.)

However, the LSO is not the only game in town when it comes to the question of whether a commissioner can take an affidavit not in the presence of the deponent. There is also the law, the Rules of Practice and the Criminal Code that address the circumstances under which an affidavit is to be taken.

The LSO has (as I recall) previously acknowledged that lawyers have been commissioning affidavits virtually, but has warned of concerns. It has now gone further specifically in response to COVID-19 and pro-actively “permits” virtual commissioning. It continues to warn of the pitfalls, including the possibility of fraud, undue influence or duress, whether the deponent has the capacity to swear/affirm an affidavit and whether the deponent has the opportunity to ask questions.

The LSO also states, “If lawyers and paralegals choose to use virtual commissioning, they should attempt to manage some of the risks associated with this practice as outlined below.” The words “attempt to manage” is a relatively low bar and for the most part, the LSO’s recommendations are correspondingly vague. For example, if there is a risk that a client may be subject to undue influence or duress, the guidance is to “consider if you are able to assist the client at this time without meeting in person”. And if not, then what? Presumably you must meet in person, as long as you stay six feet apart. Similarly, the advice respecting whether the client has capacity is for the lawyer to consult the relevant legislation and decide if they have the ability to determine capacity (always the case) and if they are using video conferencing or telephone exclusively, “should also assess whether there is a risk that the client may be subject to undue influence or duress.” Full circle.

It may be that for lawyers who are already familiar with the circumstances of the possible deponent’s life, the issue of whether there may be undue influence or duress may be more easily determined. However, if the lawyer is asked by someone new to take an affidavit, there is a real risk that someone outside the picture may be threatening or implicitly threatening the deponent, as may well be the case where the deponent is a victim of domestic violence. (I note that this may be a risk in person, even if the person exercising undue influence or duress is not in the office, but virtual commissioning enhances the problem; and the problem is further exacerbated during COVID-19 because of the demands of social isolation.)

The LSO can decide, then, that for purpose of professional conduct complaints, practitioners who commission affidavits virtually will not have to face a disciplinary inquiry, unless, presumably, there are allegations that they have not taken care to manage the risks (whatever that requires) or they cannot show they have managed the risks: an outstanding question is who has the onus here, given that this is a departure from current requirements.

It hardly bears saying, however, that the LSO cannot decide to interpret the law any way it chooses or that its interpretation has somehow nullified section 9 of the Commissioners for Taking Affidavits Act. The Law Society of Alberta has decided it is not its place to interpret the law unilaterally, resiling from providing its own interpretation, saying,

The Law Society is not able to relax the rules which require in-person execution of testamentary documents, transfers of title, and sworn affidavits because these are rules created by statute. This means that only the Government can change these rules via statutory amendment. The Law Society will be speaking to Government about this in the hopes of getting ‘urgent’ statutory amendments made. (COVID-19 FAQs)

To be clear, “Lawyers who act as commissioners or notaries should be in the physical presence of the deponent to administer the oath.” The Law Society of Alberta, however, also states that it is talking to government to see if emergency amendments can be made to the legislation. (For requirements governing commissioners and affidavits in Alberta, see Commissioners for Oaths Regulation under the Notaries and Commissioners Act, Information and Instructions for Commissioners for Oaths and subrule 13.9(1) of the Alberta Rules of Court.)

Let’s, for a moment, like the Law Society of Alberta, pretend the law matters.

In Ontario, section 9 of the Commissioners for Taking Affadavits Act states as follows:

9 Every oath and declaration shall be taken by the deponent in the presence of the commissioner, notary public, justice of the peace or other officer or person administering the oath or declaration who shall satisfy himself or herself of the genuineness of the signature of the deponent or declarant and shall administer the oath or declaration in the manner required by law before signing the jurat or declaration.

Section 11 of the Act makes it an offence to use an affidavit in any proceedings “knowing that it was not taken, sworn to or made in conformity with section 9” and prescribes a penalty of not more than $2,000 and under section 12, the appointment of a commissioner for taking affidavits may be revoked.

The Rules of Civil Procedure under the Courts of Justice Act also make provision for affidavits: “4.06 (1) An affidavit used in a proceeding shall, … (e) be signed by the deponent and sworn or affirmed before a person authorized to administer oaths or affirmations.” Other provisions address where there are two or more deponents, the deponent is illiterate or blind or the deponent does not understand the language used in the affidavit and in all cases, the affidavit is to be taken in the presence of the person taking the affidavit. However, section 2.01(1) of the Rules states failure to comply with the rules is an irregularity and non-compliance does not render a document a nullity and “only where and as necessary in the interest of justice, may [the court] set aside the proceeding or a step, document or order in the proceeding in whole or in part.” This does not mean a party may not make a motion attacking an affidavit that is in non-compliance, subject to certain preconditions and with leave of the court. Section 2.03 states, “The court may, only where and as necessary in the interest of justice, dispense with compliance with any rule at any time.”

Section 138 of the Criminal Code provides, “Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than two years or is guilty of an offence punishable on summary conviction who . . . (b) uses or offers for use any writing purporting to be an affidavit or statutory declaration that he knows was not sworn or declared, as the case may be, by the affiant or declarant or before a person authorized in that behalf,

(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 or when he knows that he has no authority to administer the oath or declaration….

The LSO acknowledges it is not its role to regulate statutes. (“Commissioning is governed by the Commissioners for Taking Affidavits Act and is not regulated by the Law Society.”). Here its interpretation is not in accord with the explicit provision of the Commissioners for Taking Affidavits Act and, indeed, it is contrary to it. Rather, it has taken upon itself to announce a practical response to the reality that most law firms have effectively shuttered their premises and its lawyers are working from home.

It is also probably no coincidence that the amendments to the Commissioner for Taking Affidavits Act included as Schedule 5 to Bill 161, the omnibus bill that will amend 20 “legal” statutes if enacted, contemplates virtual commissioning. The Commissioners for Taking Affidavits Act will still require the affidavit to be sworn/affirmed in the presence of the deponent, but it also provides for virtual commissioning if regulatory conditions are met. The new section 9 would read:

9 (1) Every oath and declaration shall be taken by the deponent or declarant in the physical presence of the commissioner, notary public, justice of the peace or other officer or person administering the oath or declaration.

(2) Despite subsection (1), if the regulations made under this Act so provide and the conditions set out in the regulations are met, an oath or declaration may be taken by a deponent or declarant in accordance with the regulations without being in the physical presence of a commissioner, notary public, justice of the peace or other officer or person administering the oath or declaration.

Bill 161 has not yet been enacted and, of course, no regulations providing for virtual commissioning under the specified conditions exist. It is noteworthy, however, that Attorney General Doug Downey tweeted the following: “Can a lawyer or paralegal use virtual commissioning in the context of COVID-19? Here is a
@LawSocietyLSO guide” and pointing out, “This topic is part of my #SmarterAndStrongerJusticeAct #Bill161” with a link to the LSO website. No doubt the LSO has had discussions with the Attorney General about this and other provisions in Bill 161 and perhaps anticipates that the regulations under the Commissioners for Taking Affidavits Act will reflect the risks, and possibly responses to them, reflective of those set out by the LSO. Thus in providing the okay for virtual commissioning within its own jurisdiction, it may be thinking it is not only responding pragmatically to the demands of social distancing, but also sneaking ahead of the post-COVID-19 world when Bill 161 is enacted.

Furthermore, the courts have suspended most in-person proceedings and are themselves operating in large measure remotely for urgent matters only in most cases (see my Slaw post on court responses to COVID-19 and the list of court websites on the homepage of the Canadian Judicial Council website). Judges would likely take a liberal view of any offence charged under the Criminal Code or under the current Commissioners for Taking Affidavits Act, when “errors” occur in good faith. These are extraordinary times with emergency measures; yet we need to remember that these are exactly the time when those who are vulnerable to duress or to being taken advantage of in other ways are particularly susceptible.

UPDATE

The Alberta Court of Queen’s Bench announced today (March 25th) it will now allow virtual commissioning of affidavits under some circumstances, with the approval of the Law Society of Alberta, “where it is not possible or is medically unsafe for the deponent to physically attend before a commissioner”. This temporary measure (“during the COVID-19 pandemic”) applies to affidavits for use in civil and family proceedings. The Notice identifies the nine detailed steps or requirements to be followed.