Law Society official position on virtual Commissioning
During COVID-19, does the Law Society’s interpretation permitting virtual commissioning under the Commissioners for Taking Affidavits Act extend to functions under the Notaries Act?
Notarizing is governed by the Notaries Act and is not regulated by the Law Society. Lawyers and paralegals should be aware that the Law Society’s interpretation below does not prevent a court or tribunal from making a different determination, nor does it supersede any specific legal requirements with respect to certain documents. Accordingly, lawyers and paralegals must assess in each case whether virtual notarization is appropriate and compliant with applicable legal requirements.
Functions of a Notary Public
Under the Notaries Act, a notary public has all the powers of a commissioner for taking affidavits in Ontario, and can also perform two discrete functions:
1. Verifying the genuineness of a signature or mark on a document, and
2. Verifying that a document is a true and genuine copy of an original.
Sections 1, 3, and 4(1) of the Notaries Act provide that notaries public are appointed for Ontario and may exercise their power with respect to transactions in Ontario.
Virtual Permitted for Commissioning and Verification of Signatures or Marks
As a result of COVID-19, until further notice:
- The Law Society will interpret the requirement in section 3 of the Notaries Act that documents that are “brought before [the lawyer or paralegal] for public protestation” as not requiring the lawyer or paralegal carrying out commissioning functions or verifying a signature or a mark to be in the physical presence of the person seeking that service.
- Rather, video conferencing as an alternative means of commissioning or verifying that a signature or mark on a document was signed or marked by the person will be permitted.
- Lawyers and paralegals need to be satisfied that the virtual conditions are adequate to permit them to discharge their duties under the Notaries Act. For example, this would not be possible if the connection was poor, the video resolution was low, or it was otherwise difficult to see documents as they were signed or to identify the individual(s) present.
- If lawyers and paralegals choose to use video conferencing for this purpose, they should manage the risks associated with doing so in the manner outlined in the related FAQs on virtual commissioning.
Virtual not Permitted for Verification of True and Genuine Copies of Original Documents
Despite COVID-19, where verification of true and genuine copies of original documents is required, lawyers or paralegals must continue to physically examine original documents against the copies. It is not acceptable for a lawyer or paralegal to view the original document online, through a video conference, or any other virtual application, nor is the provision of a copy or a digitally scanned image of the original document alone acceptable.
However, this does not necessarily mean that the lawyer or paralegal must be in the physical presence of the person seeking the notarization service. The person requesting the verification of a true and genuine copy of a document may send or otherwise deliver the original documentation to the lawyer or paralegal for examination. Lawyers or paralegals should consider the most secure, practical, and timely means of physical delivery in light of the closure or service reductions of some document delivery services. Once the lawyer or paralegal has physical access to the original and the copy, the lawyer or paralegal may examine them and provide notarial services in the ordinary course. The notarized copy and the original may then be returned through a secure document delivery service. The lawyer or paralegal should retain copies of all documents relating to the notarial services provide.
Throughout the notarization process, lawyers and paralegals are encouraged to consider taking precautions to minimize the risk of exposure to COVID-19, including hand hygiene; cleaning of documents, if possible without damaging them; and environmental cleaning. [Hyperlinks to assorted health sites omitted here. Document ends after them.]