Verbatim transcript of an LSO FAQ:

Can a lawyer or paralegal use virtual commissioning in the context of COVID-19?

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 resource.

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.

Managing the Risk of Virtual Commissioning:
If a lawyer or paralegal chooses to use virtual commissioning, the lawyer or paralegal should be alert to the risks of doing so, which may include the following issues:

• Fraud
• Identity theft
• Undue influence
• Duress
• Capacity
• Client left without copies of the documents executed remotely
• Client feels that they did not have an adequate opportunity to ask questions or request clarifying information about the documents they are executing.

To manage some of the risks:

• Consider whether there are red flags of fraud in the matter. To review these red flags, see the Federation of Law Societies’ Risk Advisories for the Legal Profession resource.
• Assess whether there is a risk that the client may be subject to undue influence or duress. If there is such a risk, consider if you are able to assist the client at this time without meeting in person.
• 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.
• Be alert to the fact that persons may attempt to use the current circumstances and resulting confusion as an opportunity to commit fraud or other illegal acts. Where lawyers and paralegals choose to use virtual commissioning, they must be particularly alert to these red flags in order to ensure that they are not assisting, or being reckless in respect of any illegal activity.

Last updated: March 16