Law societies across Canada have always made it abundantly clear that affidavits should be commissioned in-person. As video conferencing or remote commissioning technologies became more widely available, law societies frowned on using these to commission affidavits.

As the 2019 novel coronavirus disease (COVID-19) pandemic worsens, the insistence on face-to-face commissioning is being relaxed. Ontario, British Columbia and Alberta have now specifically addressed the use of technology to commission affidavits during the emergency.

As recently as November 2019, the Law Society of Ontario (LSO) issued a best practice recommendation advising against the use of remote commissioning technology (see LSO's Virtual Commissioning: Best Practice Recommendation: Continue with In-Person, not Virtual, Commissioning). In light of the COVID-19 pandemic, it has relaxed its position.

In LSO: COVID-19 Response: Corporate Statement re: COVID-19, the LSO has stated that, while best practice for commissioning documents remains to be in the physical presence of the deponent, as a result of COVID-19, the LSO will interpret section 9 of the Commissioners for taking Affidavits Act, R.S.O. 1990, c. C.17, as not requiring a lawyer or paralegal commissioning an affidavit to be in the physical presence of the deponent. Instead, alternative means of commissioning, such as commissioning by video conference will be permitted.

If you are commissioning an affidavit virtually, you must be mindful of the risks of this practice including fraud, identity theft, undue influence, capacity, duress and client service issues. You should take steps to ensure that the deponent understands the document and has the opportunity to ask questions. You must also be alert for any signs of fraud as people may try and take advantage of the current circumstances to commit fraud or other illegal acts.

In response to the COVID-19 emergency, the Supreme Court of British Columbia has published Notice to the Profession, the Public and the Media RE: Affidavits for use in Civil and Family Proceedings. The notice sets out a procedure for commissioning an affidavit by video conference for the duration of the pandemic. The Provincial Court and the British Columbia Court of Appeal published notices adopting an identical procedure.

On March 25, 2020 the Alberta Court of Queen's Bench published Notice to the Profession & Public: Remote Commissioning of Affidavits for use in Civil and Family Proceedings During the COVID-19 Pandemic. The language of the NPP, and the procedure prescribed, is identical to that of the BC courts in all material respects.

Counsel should carefully review the notice, as the steps are very detailed. Specific requirements include:

The guidelines issued in both provinces make it clear that lawyers must be incredibly diligent to confirm that these alternative methods do not become an avenue for fraud. Be sure to carefully document your procedures for confirming the identity of the affiant. This is explicit in the BC guidelines, but implicit in the guidance from the LSO.

It remains to be seen whether the acceptance of these technologies will continue once the pandemic subsides.

For more on how the COVID-19 pandemic is affecting litigation practice, see Legal Updates, COVID-19: Ontario Limitation Periods and Procedural Deadlines Suspended and Court Operations Suspended and Hearings Cancelled in Response to COVID-19.