02 April 2020
Please be advised that VRLAW will follow the guidelines contained in the Corporate Statement re: COVID-19 | Law Society of Ontario
Please note the following important points therein:
In the context of COVID-19, public health best practices include social distancing. VRLAW will be conducting routine meetings with clients by phone or using video-conferencing options such as Zoom, Skype, Facetime and other platforms.
Commissioning is governed by the Commissioners for Taking Affidavits Act
and is not regulated by the Law Society. Although the law is evolving in this area, the best practice for commissioning documents remains for the lawyer or paralegal who is acting as a commissioner to be in the physical presence of the deponent to commission the document(s). For more information, please review the Law Society’s Virtual Commissioning
However, as a result of COVID-19, until further notice:
The Law Society will interpret the requirement in section 9 of the Commissioners for Taking Affidavits Act that "every oath and declaration shall be taken by the deponent in the presence of the commissioner or notary public" as not requiring the lawyer or paralegal to be in the physical presence of the client.
Rather, alternative means of commissioning such as commissioning via video conference will be permitted.
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.
Notarizing is governed by the Notaries Act
and is not regulated by the Law Society. Lawyers and paralegals should be aware that the Law Society’s interpretation below does not prevent a court or tribunal from making a different determination, nor does it supersede any specific legal requirements with respect to certain documents. Accordingly, lawyers and paralegals must assess in each case whether virtual notarization is appropriate and compliant with applicable legal requirements.
Functions of a Notary Public
Under the Notaries Act, a notary public has all the powers of a commissioner for taking affidavits in Ontario, and can also perform two discrete functions:
Verifying the genuineness of a signature or mark on a document, and
Verifying that a document is a true and genuine copy of an original.
Sections 1, 3, and 4(1) of the Notaries Act
provide that notaries public are appointed for Ontario and may exercise their power with respect to transactions in Ontario.
Virtual Permitted for Commissioning and Verification of Signatures or Marks
As a result of COVID-19, until further notice:
Virtual not Permitted for Verification of True and Genuine Copies of Original Documents
The Law Society will interpret the requirement in section 3 of the Notaries Act that documents that are “brought before [the lawyer or paralegal] for public protestation” as not requiring the lawyer or paralegal carrying out commissioning functions or verifying a signature or a mark to be in the physical presence of the person seeking that service.
Rather, video conferencing as an alternative means of commissioning or verifying that a signature or mark on a document was signed or marked by the person will be permitted.
Lawyers and paralegals need to be satisfied that the virtual conditions are adequate to permit them to discharge their duties under the Notaries Act. For example, this would not be possible if the connection was poor, the video resolution was low, or it was otherwise difficult to see documents as they were signed or to identify the individual(s) present.
If lawyers and paralegals choose to use video conferencing for this purpose, they should manage the risks associated with doing so in the manner outlined in the related FAQs on virtual commissioning.
Despite COVID-19, where verification of true and genuine copies of original documents is required, lawyers or paralegals must continue to physically examine original documents against the copies. It is not acceptable for a lawyer or paralegal to view the original document online, through a video conference, or any other virtual application, nor is the provision of a copy or a digitally scanned image of the original document alone acceptable.
However, this does not necessarily mean that the lawyer or paralegal must be in the physical presence of the person seeking the notarization service. The person requesting the verification of a true and genuine copy of a document may send or otherwise deliver the original documentation to the lawyer or paralegal for examination. Lawyers or paralegals should consider the most secure, practical, and timely means of physical delivery in light of the closure or service reductions of some document delivery services. Once the lawyer or paralegal has physical access to the original and the copy, the lawyer or paralegal may examine them and provide notarial services in the ordinary course. The notarized copy and the original may then be returned through a secure document delivery service. The lawyer or paralegal should retain copies of all documents relating to the notarial services provide.
When using video conferencing for the provision of legal advice or services, VRLAW will:
16 March 2020
Confirm the client’s consent to proceed in this manner.
Ask that all individuals in the remote location introduce themselves.
Consider whether the presence of any of the individuals in the remote location impacts privilege and confidentiality, and assess the most appropriate next steps to protect same.
Ensure that there is no one else at the remote location who may be improperly influencing the client.
Make sure that audio and video feeds are stable and that you can hear and see all parties.
Where identification is produced to support verification of identity, ensure that a copy of the document is sent to you in advance of the online meeting and that when it is produced that the entire document is visible and legible.
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.
Maintain detailed records including: date, start and end time, method of communication, identity of all present, and minutes of content of meeting.
Measures have been implemented to make sure that we continue serving our clients and ensure the health and safety of our employees, clients, families and the greater community. We will continue to monitor the situation. We remain open. In the case we need to take alternate measures, we are equipped to work remotely.
Please contact us with any questions.