Remotely Witnessing Documents - can you do this? |

Remotely Witnessing Documents - can you do this?

Paula Puddy, HBA LLB MBA

As you know, one of the main benefits of our service is the convenience. You don’t have to travel to learn and earn CPD credits.

Have you implemented a video conferencing application such as Facetime, Skype or Zoom for your client meetings?

What happens if you need documents witnessed or affidavits sworn? Can you witness these documents where your client is physically in one location and you are in another?

Witnessing documents remotely is not allowed in Saskatchewan and BC. In Ontario, the issue is unresolved.

Eldon Horn tries to answer this difficult question where technology has outpaced the legislation.

He refers to the wording of the Commissioners for taking Affidavits Act RSO 1990 c. C.17 "in the presence of" and the Notaries Act RSO 1990 c. N.6 "brought before him or her" and discussed whether it applies to video conferencing.

Ontario’s Ministry of the Attorney General is currently considering new legislative amendments that may explicitly permit "remote/virtual commissioning". Over 30% of states in the United States have already moved to adopt new processes to "catch up to" technology.

Until the legislation changes, Eldon recommends that you don’t do it.

There are too many risks such as undue influence, client identification, fraud and record keeping.

However, many lawyers believe "in the presence of" and "before him or her" does apply if the video is clear and there is a good internet connection. They argue it is no different than the person sitting in front of them.

Watch the video

What is your take?

What is your current practice? Or, are you from another province or territory? Is your legislation being reviewed? Feel free to contact me and share your opinion or knowledge.

What would you like to see more of?

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