In March 2020, Practical Law Canada advised that both Ontario and British Columbia were permitting affidavits to be commissioned via videoconference in response to the 2019 novel coronavirus disease (COVID-19) pandemic (see Legal Update, COVID-19: Commissioning Affidavits Remotely).

Ontario now appears prepared to be make this change permanent. On May 12, 2020, the Ontario legislature introduced and passed Bill 190, titled the COVID-19 Response and Reforms to Modernize Ontario Act 2020. The legislation amends several legislative instruments, including both the Commissioners for Taking Affidavits Act, R.S.O. 1990, c. C.17 (CTAA) and the Notaries Act, R.S.O. 1990, c. N.6 (NA).

Among other amendments, the CTAA and the NA now permit an oath or affirmation to be taken without the affiant being in the physical presence of the person administering the oath or affirmation. This is dependent on regulations prescribing the conditions under which an oath may be taken remotely being passed, and those conditions being met.

Previously, as outlined in the prior Legal Update mentioned above, the Law Society of Ontario had announced that it would interpret the CTAA as not requiring that a lawyer commissioning an affidavit be in the physical presence of the affiant during the pandemic. This raised a few questions, not least among them the enforceability of the LSO's position in the courts. These amendments should answer any such question, though we still await regulations.

Further, these legislative changes, while enacted in response to the COVID-19 pandemic, will likely result in this emergency measure becoming a permanent fixture. There have been many calls for the legal system to adopt technological solutions to improve efficiency and access to justice. The COVID-19 pandemic has forced the legal system to embrace technology at a rapid pace. While it is too early to tell for certain, recent pronouncements from the bench indicate that there is no looking back.

For more on how the COVID-19 pandemic is affecting litigation practice, see Checklist, COVID-19: Canada Litigation Updates.