FAQs: Practice Management

Last updated: March 16

• waiving penalties and interest with respect to filings or remittance deadlines missed by businesses under select provincial taxes;
• temporarily increasing the Employer Health Tax (EHT) exemption;
• ensuring that employers can defer WSIB premium reporting and payments until August 31, 2020;
• providing six months of Ontario Student Assistance Program (OSAP) loan repayment and interest accrual relief for students until September 30, 2020.

• Canadian Chamber of Commerce
  • Flu and Infectious Disease Outbreaks Business Continuity Plan (Free)
  • Business Continuity Plan – Pandemic (OHS Answers Fact Sheets)
  • Infectious Disease Outbreaks/Pandemics: Workplace Tips for Both Employers and Workers
• Canadian Bar Association: Pandemics in the Workplace: A Resource for Lawyers
• LawPRO®: Managing Practice Interruptions
• American Bar Association: A Lawyer’s Guide to Disaster Planning

Law and legal services offices across Ontario may remain open if they comply with the applicable laws and regulations described in more detail below. 

However, effective April 8, 2021 at 12:01 a.m., the Ontario Government declared a third provincial emergency and issued a province-wide stay-at-home order that is expected to last at least 28 days. During this time, the COVID-19 response framework is paused. 

Persons responsible for a law or legal services office that will remain open during the stay-at-home order should review the following: 

• Ontario Government’s COVID-19 public health measures and advice
• O. Reg. 265/21, Stay-At-Home Order
• O. Reg. 363/20, Stages of Reopening
• O. Reg. 82/20, Rules for Areas in Stage 1

• Everyone must stay at home and only go out for necessities, limit their close contact to only members of the same household, and refrain from non-essential travel outside their public health region or Ontario. 
• Persons responsible for a law or legal services office must assess whether work can be done remotely or the nature of an employee’s work requires them to attend at the law or legal services office. The Ontario government is encouraging remote work in all industries to the greatest extent possible. Employers should make every effort to allow employees to work from home. 
• Persons responsible for a law or legal services office must operate the office in compliance with regulatory requirements and the advice, recommendations, and instructions of public health officials, including with respect to working remotely, physical distancing, and cleaning or disinfecting. For a high-level summary of these requirements, see “What must be done to protect the health and safety of employees and essential visitors attending the workplace?” below.

• News Release 
• COVID-19 Response Framework
• List of Public Health Units
• Public Health Unit Locator
• Resources to Prevent COVID-19 in the Workplace

The Occupational Health and Safety Act provides employees in provincially-regulated workplaces with the right to refuse work that they believe is unsafe. Licensees and non-licensee employees who are permitted to physically attend at the workplace, and who have concerns about the health and safety conditions of that workplace should bring those concerns to the attention of their employer or supervisor.
 
Employees who do not believe that their concerns have been resolved may wish to review the Ministry of Labour’s Filing a workplace health and safety complaint. Employees who believe that they face a situation of immediate danger may contact the provincial Health and Safety Contact Centre at 1-877-202-0008. In an emergency, call 9-1-1 immediately.

Further information about health and safety in the workplace, including the right to refuse or stop work due to safety concerns, is available on the Ministry of Labour, Training, and Skills Development website.
 
Employees in federally-regulated workplaces should instead review the Government of Canada’s Labour Program and federally regulated workplaces – COVID-19.

Last updated: March 30, 2021

In some situations, it may not be possible to avoid meeting with clients and others. Lawyers and paralegals should therefore consider taking precautions to minimize the risk of exposure to COVID-19. This includes hand hygiene, respiratory etiquette, environmental cleaning, and physical distancing (including using telephone or video conferencing to connect with clients, employees, colleagues, and others).

For more information, see What must be done to protect the health and safety of employees and essential visitors attending the workplace? You may also wish to review and consider implementing the recommendations set out in these public health resources:

Public Health Ontario:

• Cleaning and Disinfection for Public Settings
• COVID-19 Public Resources

Government of Ontario:

• How to Protect Yourself
• Using masks in the workplace

Government of Canada:

• Coronavirus Disease: Being Prepared
• Coronavirus Disease (COVID-19): Prevention and Risks
• Risk mitigation tool for workplaces/businesses operating during the COVID-19 pandemic

Regarding the courts, please also see our FAQ: Are the Courts Open?

Last updated: February 18, 2021

Licensees working remotely should take measures to manage or minimize the risks that remote work environments can pose to client confidentiality. These risks include:

• increased vulnerability to cyber attacks or data breaches;
• sharing confidential information across unsecure platforms;
• technical work disruptions; and
• offices that are shared with or accessible by others.

Licensees are strongly encouraged to review and, if needed, adjust current workplace policies and procedures to adequately address and mitigate these risks. In developing these remote work practices, licensees should consider:

• Whether licensees or their employees require training on cybersecurity best practices and procedures to better understand, identify, and avoid cybercrime dangers.
• Whether remote work devices, networks, and software have the latest security updates to protect and maintain client confidentiality.  
• How to advise clients of changes in communication practices, including identifying the risks and measures taken to safeguard their confidential information.
• Whether to restrict the use of personal devices or equipment and personal email or online accounts for work-related matters. 
• How to protect confidentiality when using online communication platforms or cloud storage services.  
• How and under what conditions client property can be removed from the office.
• How client property should be used, secured, stored, managed, and returned.
• How to prevent the accidental loss or inadvertent disclosure of confidential information.

For additional guidance and practical steps for complying with your professional obligations in a remote work environment, including the duty of confidentiality, licensees should contact the Practice Management Helpline.

In addition to the duty of confidentiality, licensees should be aware of their legal obligations under the Personal Information Protection and Electronic Documents Act (“PIPEDA”) regarding the collection, use, and disclosure of personal information. For more information, licensees may wish to consult PIPEDA and the Office of the Privacy Commissioner’s Privacy handbook for lawyers. 

Last updated: March 03, 2021

Yes, there is. Licensees and their staff are strongly encouraged to exercise vigilance and take precautions during COVID-19.

Cyber threat actors often seek to exploit individuals and organizations during periods of rapid change, stress, or confusion. These actors threaten the privacy, financial security, and safety of individuals and organizations through the theft of personal and proprietary information. Licensees may wish to consult the Government of Canada’s National Cyber Threat Assessment 2020 Report for information on the most significant cyber threats facing Canadians and Canadian organizations.   

For a list of considerations to help licensees safeguard personal and confidential client information against unlawful or unauthorized access, disclosure, or theft see the question “How can I ensure that client confidentiality is protected when working remotely?” above.

Licensees may also wish to review the following resources:

• LawPRO®’s Beware of cybersecurity risks during COVID-19 and working from home, which highlights some of the known COVID-19-related cyber scams and recommends ways that firms can protect themselves. 
• The Canadian Centre for Cyber Security’s Cyber Security Tips for Remote Work, which provides tips for practicing good cyber hygiene when working from any remote location.
• The Government of Canada’s GetCyberSafe.ca website which provides simple, realistic, and achievable steps to make individuals and organizations more secure. 

[See disclaimer.]

To help reduce the transmission of COVID-19, the Ontario government continues to strongly advise all individuals to maintain physical distancing when meeting with persons outside of their households.  In light of this recommendation, lawyers and paralegals should consider conducting routine meetings with clients by phone or using video-conferencing options such as Zoom, Skype, Facetime or other platforms.

It is also important for lawyers and paralegals to be aware of the types of engagements with clients that in typical circumstances would require an in-person meeting and that in the context of COVID-19 require a heightened risk-based approach if an in-person meeting is not going to be conducted.

Lawyers and paralegals should be mindful of their obligations to communicate effectively with clients when selecting an alternative means of communication:

• Commentary [8.1] to Rule 3.1-2 of the Rules of Professional Conduct (“Rules”) provides that what is effective communication with the client will vary depending on the nature of the retainer, the needs and sophistication of the client, and the need for the client to make fully informed decisions and provide instructions.
• Rule 3.01(4)(e) and (f) of the Paralegal Rules of Conduct (“Paralegal Rules”) defines competence as including communicating with the client at all relevant stages of a matter and answering reasonable client requests in a timely and effective manner.
• Guidelines 10, 10.1, and 10.3 of the Paralegal Professional Conduct Guidelines state that a paralegal can provide more effective client service by keeping the client informed regarding his or her matter, and being clear about what the client expects, both at the beginning of the retainer and throughout the retainer.
• Section 3.3 of the Rules and Rule 3.03 of the Paralegal Rules require that lawyers and paralegals protect the confidential information of their clients when meeting with them virtually or in person. 

Yes, however the rules impose a duty on lawyers and paralegals to inform their client(s) of their intention to do so. The benefits, risks, requirements, and risk management best practices are described in more detail below.

In the context of COVID-19, where client communication and confirmation of instructions may be more challenging due to remote working, physical distancing protocols, and/or where lawyers and paralegals are attempting to quickly adapt to the use of new technologies in their practices, there are benefits to recording meetings. However, if lawyers and paralegals choose to record such meetings, they should be mindful of the associated risks of doing so and take steps to manage these risks.

Benefits of Recording

Some of the benefits of recording a meeting with a client include providing the lawyer or paralegal with the ability to:

• Capture client instructions where an in-person meeting is not possible due to public health recommendations or protocols
• Focus on listening and, for virtual meetings, observing visual cues, rather than note taking
• Transcribe important or complex information after the meeting, and
• Demonstrate the process followed for the virtual meeting rather than simply documenting it.

These benefits should be considered in the context of the following risks:

• Access by others to audio or video files of client meetings that were not securely stored, as this may result in breaches of confidentiality or privilege.
• Some clients may be less open and honest with a lawyer or paralegal if they know they are being recorded.
• Important client meeting information could be lost if there are limits on access to the recorded files.

After balancing the benefits and risks, if a lawyer or paralegal wishes to record a client conversation or meeting, the lawyer or paralegal must inform the client of the intention to do so. Lawyers and paralegals are prohibited from using any device to secretly record a discussion with a client, irrespective of whether such recording is permitted by law.

Lawyers and paralegals should be aware that the Law Society rules also require them to inform other legal practitioners of their intention to record them if they intend to do so. Although not required by the Law Society rules, if other persons are present for a meeting that a lawyer or paralegal intends to record, the lawyer and paralegal should also inform such persons about their intention to record them, as there may be other legal requirements to advise persons about the recording.

Risk Management Best Practices for Recording

In addition to complying with the Law Society’s rules, to manage the risks of recording identified above, lawyers and paralegal should also consider taking the following steps:

• Reviewing the virtual conferencing service agreements to determine security, location, and accessibility of recordings and taking appropriate steps to address any issues that arise.
• Where possible, confirming the intention to record the client in writing in advance. If that is not possible, confirming the intention to record the client at the start of the recording. 
• Reminding the client at the outset of the call or meeting that it is being recorded.
• Assessing on an ongoing basis whether the recording of the client meeting is undermining the client freely sharing relevant information with the lawyer or paralegal.

Last updated: March 30, 2021

At this time, the client identification and verification requirements of By-Law 7.1 continue to apply. However:

• Lawyers and paralegals should review the information below as they do not need to verify the identity of their clients for all matters.
• If only client identification is required, lawyers and paralegals can comply with their professional obligations without meeting face-to-face or via video conference.
• As a result of COVID-19, until further notice, the Law Society will interpret the requirement that lawyers and paralegals verify the identity of their client face-to-face as not requiring the lawyer or paralegal to be in the physical presence of the client. Rather, alternative means of verification such as face-to-face verification via video conference will be permitted. Nonetheless, lawyers and paralegals should conduct a risk assessment to ensure that it is appropriate in their circumstances to verify identity via video conference. If a lawyer or paralegal chooses to verify identity via video conference, they should also attempt to manage some of the risks associated with this practice as outlined below.

Because there is no obligation to meet with a client face-to-face to identify the client, lawyers and paralegals should keep in mind the distinction between identifying and verifying the identity of a client:

Identifying the client means obtaining certain basic information about your client and any third party directing, instructing or who has the authority to direct or instruct your client, such as a name and address. You must obtain this information whenever you are retained to provide legal services to a client unless an exemption applies. This step can be done by email, phone, video conference, or other forms of communication. There is no requirement that it be completed face-to-face.

Verifying the identity of a client means looking at an original identifying document from an independent source to ensure that your clients and any third parties are who they say they are. You are only required to verify the identity of your client and such third parties if you are involved in a funds transfer activity, that is, you engage in or instruct with respect to the payment, receipt or transfer of funds, and an exception does not apply.

Verification of client identity must occur face-to-face unless

• The individual whose identity is being verified is present in Canada and an attestation from a commissioner of oaths or other guarantor is provided; or
• The individual whose identity is being verified is not present in Canada and verification is provided by an agent.

After conducting this risk assessment, if the lawyer or paralegal decides to use video conferencing to conduct face-to-face verification of client identity, the lawyer or paralegal should

• Consider requesting that the client send a high-resolution image of the identification document by secure means in advance of the video conference and asking the client to show the original identification document during the video conference;
• Ensure that they are reasonably satisfied that the identification document is valid and current;
• Compare the image in the identification document with the client to be reasonably satisfied that it is the same person;
• Record, with the applicable date, the method by which the lawyer or paralegal verified the client’s identification; and
• Document the efforts that were made to verify the client’s identity in accordance with the existing requirements and the reasons why the lawyer or paralegal was unable to verify the client’s identity in accordance with the existing requirements.*

In response to COVID-19, lawyers and paralegals should be aware that validity periods for government issued forms of identification that expired on or after March 1, 2020 have been extended. For further information, see the FAQ, “In the context of COVID-19, what if a client’s identification has recently expired?”

*[See disclaimer.]

Last reviewed: April 1, 2021

Yes, but only if certain conditions are met.

For detailed information on the conditions for remote commissioning as well as its governing legislation, the risks associated with it, practice tips to mitigate risk, and best practice resources, see the Law Society’s Remote Commissioning resource.

Last updated: April 1, 2021

This is a substantive legal issue and is context specific. Lawyers and paralegals should review applicable legislation to determine if electronic signatures are permitted in the context of their matters. For example:

• The Electronic Commerce Act, 2000 sets out the rules for conducting business transactions electronically in Ontario.
• The Succession Law Reform Act includes provisions that govern the execution of testamentary documents.
• The Trust and Loan Companies Act, the Bank Act, and the Insurance Companies Act  include provisions that recognize electronic signatures when written executed documents are required under these statutes.
• The Alternative Filing Methods for Businesses Act, 2020 permits electronic signatures and electronic copies in respect of certain documents (note: this legislation is temporary and will be revoked on a day to be proclaimed by the Lieutenant Governor in Council).

Note: The Law Society does not regulate how documents are executed.

Last updated: April 1, 2021

Lawyers or paralegals who are retained on a contingency fee basis must consider the requirement in O. Reg. 195/04 to the Solicitors Act, which provides that in addition to being in writing, a contingency fee agreement “shall be signed by the client and the solicitor, with each of their signatures being verified by a witness”.

The courts and the Law Society share responsibility for the regulation of contingency fee agreements. Although the Law Society’s jurisdiction is limited in this area, as a result of COVID-19, until further notice:

• The Law Society will interpret the above requirement as not requiring the lawyer, paralegal, or witness to be in the physical presence of the client(s) to verify the signature(s).
• Rather, alternative means of verifying signatures such as witnessing via video conference and verifying against a scanned copy of the agreement will be permitted.

If lawyers and paralegals choose to use virtual witnessing of signatures, they should attempt to manage some of the risks associated with this practice as outlined below:

• Employ the best practices for using video conferencing in providing legal advice or services and adapt as appropriate.
• Ensure the witness can see the agreement as it is being signed by the parties.
• Have parties hold the signed document to the camera to demonstrate signature to the witness.
• Scan and send the signed agreement to the witness at the time, so that the witness may verify the signature(s).
• Provide the party with a unique identifier phrase or code to write in a particular place on the document, which can then be used to verify the electronic copy against the original.

Document the process used for signing and witnessing in case of subsequent controversy.

Last reviewed: April 1, 2021

The Ministry of the Attorney General, which is responsible for the administration of courts and courthouse facilities, states on its homepage that: “Courts are not operating as usual. Do not go to court unless you have been told to attend. Ontarians can continue to access the justice system for urgent matters, including online.”

Where possible, licensees are encouraged to issue and file their documents using the Justice Services Online platform for civil claims, small claims court, or family law matters, or by email as directed in each Region’s Notice to the Profession. Licensees should monitor the Ministry’s website or their Court Services website for further information and updates.

Effective March 17, 2021, the suspension of jury trials is extended until

• June 7, 2021 at the earliest, in the Central West, Central East, Central South, and East regions, and
• July 5, 2021 at the earliest, in the Toronto, Northwest, and Southwest regions.

No new jury selection will commence during this period. Proceedings that are in progress may continue subject to the discretion of the trial judge. All non-jury matters should proceed virtually unless it is absolutely necessary to hold the proceedings in-person. This applies to proceedings throughout the province of Ontario. For further information, licensees should consult the Superior Court of Justice’s  Notice to the Profession and Public Regarding Court Proceedings and Guidelines on Access to Hearings During the COVID-19 Pandemic.

Licensees should also check the applicable court website for information about remote or in-person attendance at specific courthouses.

Ontario Court of Justice - https://www.ontariocourts.ca/ocj/
Superior Court of Justice - https://www.ontariocourts.ca/scj/
Court of Appeal for Ontario - https://www.ontariocourts.ca/coa/en/
Federal Court of Canada - https://www.fct-cf.gc.ca/en/home
Tax Court of Canada - https://www.tcc-cci.gc.ca/en/home
Supreme Court of Canada - https://www.scc-csc.ca/

Last updated: March 22, 2021

Limitation and procedural time periods were suspended effective Monday, March 16, 2020.

Effective Monday, September 14, 2020, suspended limitation and procedural time periods resumed running. The Ontario Regulations suspending, further extending the suspension, and revoking the suspension of the limitation and procedural time periods can be viewed here: O. Reg. 73/20, 458/20, and 457/20). 

Please note the following limitation and procedural time periods that also resumed running:

• Effective June 5, 2020, driver’s licence suspensions under the Family Responsibility and Support Arrears Enforcement Act as a means to enforce payment of child or spousal support in appropriate cases resumed (O. Reg. 73/20). 
• Effective April 16, 2020, the suspension of limitation periods and procedural time periods under the Construction Act was lifted (O. Reg. 73/20).

For more detailed information, you may wish to review the following:

LawPRO:

• Ontario limitation periods and procedural time periods resume September 14, 2020  

• How to deal with limitations periods that were suspended during the pandemic
• Tips for calculating limitations deadlines accounting for the COVID-19 emergency suspension period

The following real estate resources have been prepared for lawyers:

Law Society of Ontario

• CPD Programs, including
  • Professionalism and Practice Management Issues for Real Estate Lawyers
  • The Annotated Residential Agreement of Purchase and Sale 2021
• Trust Deposits, Transfers and Withdrawals FAQs for guidance on wire transfers in the context of a real estate or mortgage transaction.

•  COVID-19 Real Estate Update (February 12, 2021)

• Lenders accepting wire payments to discharge mortgages
• Tips for real estate lawyers in the COVID residential purchase, refinance and home renovation marketplaces
• Real Estate Fraud Fact Sheet

Last updated: April 6, 2021

Yes. In many cases, while lawyers, clients, and/or witnesses are practising social or physical distancing, self-isolation, or quarantine in the context of COVID-19, lawyers are able to support clients with the execution of wills or powers of attorney remotely with the assistance of audio-visual communication technology. Wills and powers of attorney that are signed and witnessed remotely may be signed and witnessed in counterparts.

Remote execution of wills and powers of attorney are permitted until April 20, 2021, unless otherwise extended by the Lieutenant Governor in Council.

Licensees should note that on February 16, 2021, the Ontario Government introduced Bill 245, Accelerating Access to Justice Act, 2021 in an effort to improve access to justice for people across the province.  If passed, Schedules 8 and 9 of the Act would, among other things, amend the Substitute Decisions Act, 1992 and the Succession Law Reform Act to permanently provide for the remote witnessing of powers of attorney and wills through the means of audio-visual communication technology. For more information, licensees should review the Ontario Government’s News Release dated February 16, 2021.

Last Updated: March 22, 2021

There are two changes to the requirements for wills and powers of attorney resulting from the Orders (now O. Reg. 129/20).

First, for both wills and powers of attorney executed and witnessed remotely, at least one witness must be a licensee within the meaning of the Law Society Act.  The Law Society understands that the Ontario government means this to be an Ontario-licensed lawyer or paralegal at the time of signing.

Second, for wills executed and witnessed remotely, the testator may sign and witness may subscribe on separate complete, identical copies of the will, in counterpart. Together, these copies constitute the will. Likewise, donors and witnesses to powers of attorney for property or personal care that are executed and witnessed remotely may sign on separate complete, identical copies of the power of attorney, in counterpart. Together, these copies constitute the power of attorney.

Unless otherwise noted, all other requirements for wills and powers of attorney remain in place. Specifically, it is important to note:

• All other witness requirements continue to apply.
• Original “wet signatures” from the testator and witnesses must still be obtained for probate purposes and, in the case of powers of attorney, may still be required by third parties.

No. Despite O. Reg. 129/20, there may be times when the execution of a will or power of attorney should not be conducted remotely. For each matter, lawyers should assess the circumstances and client instructions to determine if a remote signing is possible and appropriate.

For example, lawyers should consider whether any of the following are potential issues in a particular matter:

• Lawyer, client, or witness access to or competence with suitable video conferencing technology
• Client capacity
• Client duress, coercion, or undue influence
• Red flags of fraud with respect to the will or power of attorney

If any of these issues are present, the lawyer should take appropriate steps. Depending on the circumstances, the lawyer should either ensure that the issue is resolved to their satisfaction prior to the remote execution, decline to proceed with a remote execution, or, in some cases, refuse to act in or withdraw from the matter.

Last updated: February 19, 2021

No. Paralegal scope of practice did not change; it continues to be defined by By-Law 4 made pursuant to the Law Society Act. While the Ontario government advised that it intended for the definition of “licensee” in the Orders to permit either a lawyer or a paralegal to be a required witness, only lawyers are permitted to prepare and provide legal advice about wills or powers of attorney. For greater certainty, neither the First Order, nor the Second Order (as first enacted and as continued under O. Reg 129/20) permits a paralegal to prepare a will or power of attorney or to provide legal advice about wills and powers of attorney, including about the operation or effect of the will or power of attorney being remotely executed.

Last updated: February 19, 2021