by Raymond G. Leclair

announcements

As Ontario continues to respond to COVID-19, the temporary provisions permitting the virtual witnessing of wills and powers of attorney are being wound down. However, the government has introduced new legislation and related regulations to permit the virtual commissioning of oaths or declarations.

Remote Virtual Signing of Wills and Powers of Attorney

The Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (Bill 195) received Royal Assent on July 21, 2020 and ended the Emergency Period in Ontario. The Emergency Orders which provided special provisions during the pandemic have been extended, including the right to remotely and virtually sign wills and powers of attorney. Thereafter, unless a further extension is granted, wills and powers of attorneys will need to be executed in the physical presence of witnesses.

Moving to Virtual Commissioning

The COVID-19 Response and Reforms to Modernize Ontario Act, 2020 (Bill 190) modified the Commissioners for Taking Affidavits Act, R.S.O. 1990, C.17 in section 9, which provided that “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…” This will now read “in the physical presence of the commissioner, notary public or other person administering the oath or declaration” on a date to be proclaimed (likely Aug 1, 2020). The Act will similarly be modified to permit by regulation the taking of an oath or declaration NOT in the physical presence of. Ontario Regulation 431/20 permits an oath or declaration may be taken by a deponent or declarant without being in the physical presence of the person administering the oath or declaration, if conditions are met. The Regulation came into force on August 1, 2020.

Regulation 431/20 sets the following conditions for virtual commissioning:

  1. The oath or declaration is being administered by an electronic method of communication in which the person administering the oath or declaration and the deponent or declarant are able to see, hear and communicate with each other in real time throughout the entire transaction.
  2. The person administering the oath or declaration confirms the identity of the deponent or declarant.
  3. A modified version of the jurat or declaration is used that indicates,
    1. that the oath or declaration was administered in accordance with this Regulation, and
    2. the location of the person administering the oath or declaration and of the deponent or declarant at the time of the administering.
  4. In the case of a commissioner to whom section 5 of the Act applies (commissioner whose appointment is limited in its duration or as to territory or purpose), the information on the stamp required to be used under that section appears on or in the document being signed.
  5. The person administering the oath or declaration takes reasonable precautions in the execution of the person’s duties, including ensuring that the deponent or declarant understands what is being signed.
  6. Every person who administers an oath or declaration in accordance with this section shall keep a record of the transaction. (No guidance provided as to what satisfies the record requirement. LAWPRO suggests at a minimum to retain a copy of the document signed; how ID was confirmed and your notes of the signing session – see our checklist

The jurat is the part of the document where you certify when and where you took the affidavit or declaration. It is usually written at the foot of the document. A common form of jurat:

Sworn (or Affirmed or Declared) before me at the (City, Town, etc.) of ………………… in the (County, Regional Municipality, etc.) of …………………, on (date).

………………………………………………………
Commissioner for Taking Affidavits

(AN IMPRINT OF YOUR STAMP MUST BE PLACED HERE)

 

The Ministry Guide states that when conducting remote commissioning, a modified version of the jurat must be completed, such as:

Sworn (or Affirmed or Declared) remotely by (deponent /declarant’s name)
stated as being located in the (City, Town, etc.) of ………… in the (County, Regional Municipality, etc.) of …………,
before me at the (City, Town, etc.) of ………………… in the (County, Regional Municipality, etc.) of …………………,
on (date),
in accordance with O. Reg 431/20, Administering Oath or Declaration Remotely.

………………………………………………………
Commissioner for Taking Affidavits
(AN IMPRINT OF YOUR STAMP, OR THE INFORMATION CONTAINED THEREIN, MAY BE PLACED HERE.
If the stamp imprint or information is not placed here it must appear in full elsewhere on the commissioned document.)
The same information that appears on your physical stamp must also appear on the document being commissioned remotely.

For further information, we refer you to:
1. Law Society of Ontario’s Practice Management Topics; and
2. Ministry of the Attorney General’s Guide for New Commissioners – (English) (French)