Back to Navigation
LSO COVID-19 Response

FAQs: Practice Management

The Law Society has developed the following guidance for lawyers and paralegals to support them in the practice of law and delivery of legal services in the context of the Coronavirus (“COVID-19”) pandemic. This is an unprecedented situation and some flexibility may be required to ensure continuity of essential legal services without undue risk to public health.

Public health agencies have recommended a number of measures to reduce the risk of transmission, including social distancing.  However, many legislative requirements and risk management measures require in-person contact with clients and others. 

Lawyers and paralegals have been asking the questions set out below. Answers have been prepared to assist lawyers and paralegals with alternative approaches to discharge competing duties.

Jump to:

1. Licensee Supports
2. Office Management
3. Practice Interruptions
4. Virtual Meetings
5. Client Identification and Verification
6. Commissioning and Notarization
7. Signing Documents
8. Cybersecurity
9. Litigation
10. Real Estate
11. Wills and Power of Attorney

Licensee Supports

Office Management

  • Are law offices still open?

    Effective March 24, 2020, the Ontario Government ordered the mandatory closure of all non-essential workplaces. On April 3, the list of essential workplaces was revised by the Province.

    Item 34. vii. “Professional and social services that support the legal and justice system,” includes paralegal and law offices.

    Although law offices and paralegal offices are not required to close pursuant to the Government’s order, the Law Society of Ontario supports social or physical distancing as a response to COVID-19, and encourages all licensees to work remotely and virtually wherever feasible.

    Licensees who feel that their offices must remain physically open are urged to follow the advice of Public Health Ontario and their local Public Health Unit.*

    Licensee employers are reminded of their obligation to comply with all applicable provincial workplace legislation and regulations including the Occupational Health and Safety Act. Under that Act, employers must take all reasonable precautions to protect the health and safety of workers.

    As employers, licensees are encouraged to have a policy in place that outlines requirements where clients and employees may be sick or unable to attend at the office in order to care for others.

    On March 19, the Government of Ontario passed the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 which provides job-protected leave to employees in isolation or quarantine due to COVID-19, or those who need to be away from work to care for children because of school or day care closures.

    The act would also makes it clear that an employee is not required to provide a medical note if they need to take the leave. However, the employer may require the employee to provide other evidence that is reasonable in the circumstances, at a time that is reasonable in the circumstances. This could include such requests as a note from the daycare, but not a medical note. These measures are retroactive to January 25, 2020, the date that the first presumptive COVID-19 case was confirmed in Ontario.

    Read the Province’s news release.

    Licensees are also encouraged to have an infection control plan which may include:

    • Moving to remote work options where possible and using social distancing techniques such as telephone and video conferencing as much as possible
    • Ensuring that offices and workstations are cleaned and sanitized where necessary, in particular areas that are touched frequently, such as doorknobs, handles, and railings.
    • Ensuring that there are clean and well stocked hand washing facilities
    • Offering alcohol-based hand sanitizers where appropriate
    • Providing tissues and encouraging their use


    Last updated: April 6

  • What about the health and safety of lawyers, paralegals, employees and clients?
    Licensee employers must comply with all applicable provincial workplace legislation and regulations including the Occupational Health and Safety Act. Under that Act, employers must take all reasonable precautions to protect the health and safety of workers.

    As employers, licensees are encouraged to have a policy in place that outlines requirements where clients and employees may be sick or unable to attend at the office in order to care for others. The Government of Ontario has announced its intention to introduce legislation that, if passed, would immediately provide job-protected leave to employees in isolation or quarantine due to COVID-19, or those who need to be away from work to care for children because of school or day care closures. The proposed legislation would also make it clear that an employee will not be required to provide a medical note if they take the leave. The measures would be retroactive to January 25, 2020, the date that the first presumptive COVID-19 case was confirmed in Ontario.

    Licensees are also encouraged to have an infection control plan which may include:
     
    • Moving to remote work options where possible and using social distancing techniques such as telephone and video conferencing as much as possible
    • Ensuring that offices and workstations are cleaned and sanitized where necessary, in particular areas that are touched frequently, such as doorknobs, handles, and railings.
    • Ensuring that there are clean and well stocked hand washing facilities
    • Offering alcohol-based hand sanitizers where appropriate
    • Providing tissues and encouraging their use

    As the situation unfolds, licensees are urged to follow the advice and guidance of Public Health Ontario and their local public health unit.

    Licensees and non-licensee employees who have concerns about work conditions should bring those concerns to the attention of their employer or supervisor. Employees who do not believe that their concerns have been resolved may contact the Ministry of Labour to file a 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.

    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.

    Last updated: March 18
  • If lawyers or paralegals are required to meet with clients or others face-to-face, what can they do to reduce the risk of exposure to COVID-19?

    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 social distancing. For more information, review the recommendations set out in these public health resources and consider implementing them:

    Public Health Ontario:

     

    Government of Ontario:

     

    Government of Canada:


    Last updated: March 16

Practice Interruptions

  • What should lawyers or paralegals do to prepare for practice interruptions associated with COVID-19?
    If lawyers or paralegals have disaster or business continuity plans in place for their workplaces, they should review these now and consider to what extent the plan(s) should be implemented at this time.

    If lawyers or paralegals do not have such plans in place, or existing plans do not adequately address the concerns raised by COVID-19, they should consider reviewing the below resources and following the recommended planning steps [See disclaimer.]:
     
    Other specific practice management considerations for lawyers and paralegals preparing for practice interruptions in in the context of COVID-19 include:

    Working from Home:
    If lawyers or paralegals choose to work remotely from home as part of their plans, they should consider whether all the key information they require is readily accessible and current. This includes client contact information, client files, staff and service provider contact information, bank account information, and passwords for personal and staff voicemail, computers and emails.

    Lawyers and paralegals should also consider how they will:
    • keep client information confidential from family members or others
    • communicate with clients
    • secure and receive deliveries to their offices
    • continue to delegate to, and appropriately supervise, non-licensees and other staff.

    For more information, see the Law Society Home Office resource.

    If non-licensee or other staff will also be working remotely, lawyers and paralegals must also ensure that the non-licensee or other staff are able to maintain confidentiality in doing so.

    Illness or Absence of Lawyer, Paralegal, or Staff:
    In the event that lawyers or paralegals are unable to continue to manage their practice due to illness, they should have a Continuing Power of Attorney for Property including Law Practice in place. See the Law Society Contingency Planning Guide (for Lawyers) (for Paralegals) for more information.

    Lawyers and paralegals should also consider what specific tasks are impacted if staff are unable to attend the office and ensure that coverage is provided so that clients are not prejudiced.

    Ongoing Communication:
    If lawyers or paralegals are changing their business hours, if alternative means of communication will be used or there will be delays to communication, or if other changes to firm operations are anticipated, lawyers and paralegals should communicate this information to clients and staff as soon as practicable. Lawyers and paralegals may consider using email updates, notices on their websites, or other means, as appropriate, based on the needs of their clients and staff.


    Last updated: March 16

  • What should I do if I have to wind-up my practice temporarily or permanently?
    If you intend to temporarily or permanently wind-up your practice, or if you have questions about the procedures and requirements to wind-up your  practice and/or to close your trust account, please contact Trustee Services, by phone (416-947-3366, toll-free 1-800-668-7380 ext. 3366) or by email (trustee_services@lso.ca). While the Law Society is currently in a work at home arrangement, Trustee Services can provide information and assistance by email or telephone.  

    Last updated: March 30

Virtual Meetings

  • How can lawyers and paralegals communicate effectively with clients while using social distancing to reduce health risks in their practices?

    In the context of COVID-19, public health best practices include social distancing. Lawyers and paralegals should consider conducting routine meetings with clients by phone or using video-conferencing options such as Zoom, Skype, Facetime and 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 in selecting an alternative means of communication:

    • Commentary [8.1] to Rule 3.1-2 of the 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 defines competence as including communicating with the client at all relevant stages of a matter in a timely and effective manner, 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.


    In the context of COVID-19, if lawyers and paralegals choose to change their means of client communication, they should consider notifying clients about the alternative means of communication that they intend to use as soon as practicable. For more information about best practices in using alternative means of communication, please see the questions and answers below.

    Last updated: March 16

  • Can a lawyer or paralegal use a virtual means of assessing a client’s capacity such as video conferencing or telephone?
    Lawyers and paralegals should continue to consult the relevant legislation and case law that govern capacity, and consider whether or not they have the ability to adequately assess a person’s capacity through remote means, such as on video conferencing or telephone.

    Applicable legislation includes the Substitute Decisions Act, the Rules of Civil Procedure, and/or other legislation and regulations, depending on the context of the matter. The legal requirement(s) for assessing a person’s capacity to make a decision are not regulated by the Law Society, and vary based on the task or decision at hand.

    In using video conferencing or telephone as the exclusive means of communicating with a client, lawyers and paralegals should also assess whether there is a risk that the client may be subject to undue influence or duress.
     

    Last updated: April 8

  • Are lawyers and paralegals permitted to record meetings with clients conducted by telephone or using virtual communication technologies?
    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 of 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 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.
     
    Risks of Recording
    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.
     
    Requirement to Inform  
    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 (r. 7.2-3, Rules of Professional Conduct; r. 7.01(6), Paralegal Rules of Conduct). 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: April 2

  • What are some best practices for using video conferencing in providing legal advice or services?

    When using video conferencing for the provision of legal advice or services, lawyers and paralegals should:

    • Confirm the client’s consent to proceed in this manner.
    • Ask that all individuals in the remote location introduce themselves.
    • Consider whether the presence of any of the individuals in the remote location impacts privilege and confidentiality, and assess the most appropriate next steps to protect same.
    • Ensure that there is no one else at the remote location who may be improperly influencing the client.
    • Make sure that audio and video feeds are stable and that you can hear and see all parties.
    • Where identification is produced to support verification of identity, ensure that a copy of the document is sent to you in advance of the online meeting and that when it is produced that the entire document is visible and legible.
    • 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.
    • Maintain detailed records including:  date, start and end time, method of communication, identity of all present, and minutes of content of meeting.


    Last updated: March 24

Client Identification and Verification

  • In the context of COVID-19, can a lawyer or paralegal use a virtual means of identifying or verifying the identity of a client such as video conferencing or telephone?

    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 are able to 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.


    Current Requirements:
    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 actually 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.

    • Assess whether verification of identity is required in the matter.


    Verification of client identity occurs 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.

    For more information, please review the Law Society’s Client Identification and Verification Requirements resources. For specific information about attestations or retaining an agent, please see Appendices 4, 5, 7, and 8.

     

    Managing the Risk of Face-to-Face Verification via Video Conference:

    Where a lawyer or paralegal is considering using video conference as a means to conduct face-to-face verification of client identity instead of being in the physical presence of the client or by attestation or an agent, the following factors should be reviewed to help manage some of the risk:

    • Consider whether there are any red flags associated with fraud or money laundering, attempt to mitigate risk, and determine if they should proceed.
      • To review these red flags, see the Federation of Law Societies’ Risk Advisories for the Legal Profession resource.*
      • Stay alert to the fact that persons may attempt to use situations like COVID-19 as an opportunity to commit fraud or other illegal acts and to be particularly vigilant for red flags of fraud or other illegal activities.
      • Where virtual methods are chosen lawyers and paralegals must be particularly alert to these red flags to ensure they are not assisting in or being reckless in respect of any illegal activity.
      • Lawyers and paralegals should document any red flags, what measures they have taken to mitigate that risk, and their decision on how they proceeded.
      • If many red flags are present, lawyers and paralegals should consider whether they are permitted to proceed with the matter.
    • Consider using another method of verifying identity that may reduce the risk of fraud or money laundering such as the dual process or credit file methods.


    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 updated: March 30

  • In the context of COVID-19, what if a client’s identification has recently expired?
    Lawyers and paralegals should be aware that provincial and territorial governments are taking measures to ensure the health and safety of their employees and the public. This includes extending the validity of identification documents, including drivers’ licenses, that have expired on or after March 1, 2020, so that in-person visits to renewal facilities can be avoided. For the purposes of verifying client identity using this type of identification document, if a person presents a document or information affected by such a decision, the legal professional must continue to determine that the document is a government-issued photo ID document, but can, until further notice, consider the document or information as valid and current pursuant to its issuing authority, in this case the provincial or territorial government. Alternatively, the legal professional may wish to consider using another method to verify the identity of the person.

    As the approach to this issue may vary among provincial and territorial governments in Canada, lawyers and paralegals should check with the appropriate authority in the relevant jurisdiction(s).

    Information on the extended validity period for drivers’ licenses in Ontario is available here.

    Last updated: March 30

Commissioning and Notarization

  • 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. [See disclaimer.]
    • 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.

    For more information about how to commission documents virtually, please see the FAQ: “How should a lawyer or paralegal virtually commission documents?"


    Last updated: April 8

  • How should a lawyer or paralegal virtually commission documents?
    There is no prescribed process for commissioning documents virtually.

    However, to ensure a consistent process is used and documented, and to mitigate the risks associated with not being the physical presence of deponents, lawyers and paralegals may wish to develop or adopt best practices and/or a checklist.

    The following sample materials have been prepared by the Law Society to assist lawyers and paralegals:

    Best Practices for Virtual Commissioning during COVID-19

    Virtual Commissioning Checklist

    Last updated: April 8
  • 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. For more information, review the recommendations set out in these public health resources and consider implementing them:

    Public Health Ontario:  
    Government of Ontario:  
    Government of Canada:  

    Last updated: April 2

Signing Documents

  • Can electronic signatures be used to execute documents?

    This is a substantive legal issue, is context specific, and the Law Society does not regulate how documents are executed. Lawyers and paralegals should review applicable legislation to determine if electronic signatures are permitted in the context of their matters. For example, the Succession Law Reform Act includes provisions that govern the execution of testamentary documents. Lawyers and paralegals may also wish to review the Electronic Commerce Act, 2000.

     

    Last updated: March 18

  • Do retainer agreements, other than contingency fee agreements, need to be signed?
    No. Because the Law Society does not require that lawyers or paralegals to enter into retainer agreements with clients, there is no requirement that a retainer agreement be signed. However, as a best practice, the Law Society’s existing guidance materials do recommend that engagements be confirmed in writing by way of either a retainer agreement executed by the client or an engagement letter. Additional information about the terms to include in retainer agreements or engagement letters is available in the Law Society’s Retainer Agreement or Engagement Letter resource. 
     
    In order to comply with public health directives to exercise social or physical distancing, at this time, lawyers and paralegals are encouraged to confirm the essential terms of an engagement in writing through whatever means is most practical. For example, lawyers or paralegals may wish to send an email to a client confirming the terms of engagement and ask the client to acknowledge the terms by email. Alternatively, lawyers or paralegals who wish to continue to use retainer agreements may mail, email, or courier documents to their clients for signature.

    Last updated: March 26
  • Must contingency fee agreements be signed?
    Lawyers or paralegals who are retained on a contingency fee basis must consider the requirement in Regulation 195/04 to the Solicitors Act R.S.O.1990, c. S.15, 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 updated: March 26
  • Do Settlement Agreements need to be signed?
    This is a substantive legal issue, is context specific, and the Law Society cannot provide advice or guidance about the validity or enforceability of settlement documents. Lawyers and paralegals should review applicable legislation and case law to determine if signatures are required in the context of their matters.
     
    Lawyers and paralegals may wish to consider:
    • Courts may enforce informal settlement agreements, including where the terms are agreed to over electronic communications, that are not signed by the parties
    • Certain prescribed settlement forms may require signatures and witnesses
    • The Law Society’s guidance on providing legal services via video conferencing
     
    Regardless of the circumstances of the settlement, lawyers and paralegals should still obtain written confirmation from their clients of agreements to settle on specific terms (by mail, fax, or email), and the settlement should be confirmed between the parties in writing (by mail, fax, or email).

    Last updated: March 26

Cybersecurity

Litigation

Real Estate

  • In the context of COVID-19, what real estate practice guidance is available?

    The Federation of Ontario Law Associations has prepared resources for lawyers:

    Last updated: March 23

  • Do the Law Society’s FAQs regarding COVID-19 change real estate closing requirements such that all transactions can now be closed virtually?
    No. In the context of COVID-19, the Law Society’s interpretations with respect to virtual verification of identity address your obligations to comply with the Law Society’s requirements. The Law Society’s interpretations do not affect the requirements imposed by third parties to verify identity.

    Similarly, the Law Society’s FAQ regarding the virtual commissioning of documents addresses how the Law Society in its role as your regulator will regard your commissioning documents remotely. It has no influence or authority about the requirements of other parties in the commissioning of documents.

    As a result, these changes to the Law Society’s requirements may facilitate your closing some transactions virtually.

    However, some real estate transactions may still require lawyers to meet in-person with clients. These requirements may be imposed by parties on the other side of transactions, lenders, or other third parties, all of whom are not regulated by the Law Society. 

    As a result, lawyers must assess each transaction and the instructions they receive from their clients carefully to determine if a virtual closing is possible and appropriate in the circumstances.

    In making this assessment, lawyers should keep in mind that the Law Society’s interpretations do not supersede legislative obligations; requirements set by other regulators or government entities (e.g., the Canada Revenue Agency); conditions imposed by other parties (e.g., by lenders in respect of mortgage instructions); or contractual terms to which the parties agreed and are bound, absent further negotiation.

    In addition, in some cases, lawyers or clients do not have access to or ability to use the technology required for an effective virtual closing. Absent any provision in an agreement, there is no obligation to complete a transaction remotely or virtually.

    In other cases, there may be red flags in the real estate transaction that should result in the lawyer concluding that a virtual closing is not appropriate in the circumstances.

    For more information on closing real estate transactions during COVID-19, whether virtually or in-person, lawyers may wish to view the Law Society’s CPD program Your Real Estate Practice and the COVID-19 Pandemic: What You Need to Know Right Now.

    Last updated: April 7

Wills and Power of Attorney

  • In the context of COVID-19, and as a result of the emergency Orders in Council dated April 7, 2020 and April 22, 2020, have the requirements for executing and witnessing of wills and powers of attorneys changed?*
    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 now able to support clients with the execution of wills or powers of attorney with the assistance of audio-visual communication technology (“virtually”). Wills and powers of attorney that are signed and witnessed virtually may also now be signed and witnessed in counterparts. This FAQ addresses the
     
    • Legislative authority for the changes
    • Changes to the requirements
    • Continuing requirements
    • Scope of practice and role of paralegals
    • Process and best practices for virtual execution
    • Limits on virtual execution
    • Alternatives to virtual and in-person execution, and
    • Other supports related to the changes.
     
    What is the legislative authority for the changes?
     
    Pursuant to section 7.0.2(4) of the Emergency Management and Civil Protection Act, on April 7, 2020, the Ontario government issued an emergency Order in Council(“First Order”). Schedule 1 to the First Order permitted wills and powers of attorney to be executed and witnessed virtually in certain circumstances.

    The Ontario government issued a second emergency Order in Council on April 22, 2020 (“Second Order”). The Second Order revoked the First Order and substituted the following language:
     
    Schedule 1

    Definition
     
    1.  In this Order,
     
    “audio-visual communication technology” means any electronic method of communication in which participants are able to see, hear and communicate with one another in real time.
     
    Wills
     
    2.  (1)  A requirement under the Succession Law Reform Act that a testator or witnesses be present or in each other’s presence for the making or acknowledgment of a signature on a will or for the subscribing of a will may be satisfied by means of audio-visual communication technology provided that at least one person who is providing services as a witness is a licensee within the meaning of the Law Society Act at the time of the making, acknowledgment or subscribing.
     
         (2)  If a will is executed with the assistance of audio-visual communication technology as authorized by subsection (1), the signatures or subscriptions required by the Succession Law Reform Act may be made by signing or subscribing complete, identical copies of the will in counterpart, which shall together constitute the will.
     
         (3)  For the purposes of subsection (2), copies of a will are identical even if there are minor, non-substantive differences in format or layout between the copies.
     
    Powers of attorney
     
    3.  (1)  A requirement under the Substitute Decisions Act, 1992 that witnesses be present for the execution of a power of attorney may be satisfied by means of audio-visual communication technology provided that at least one person who is providing services as a witness is a licensee within the meaning of the Law Society Act at the time of the execution.
     
         (2)  If a power of attorney is executed with the assistance of audio-visual communication technology as authorized by subsection (1), the signatures required by the Substitute Decisions Act, 1992 may be made by signing complete, identical copies of the power of attorney in counterpart, which shall together constitute the power of attorney.
     
         (3)  For the purposes of subsection (2), copies of a power of attorney are identical even if there are minor, non-substantive differences in format or layout between the copies.
     
    What requirements for wills and powers of attorney executed and witnessed virtually have changed?
     
    For the duration of the emergency, there are two changes to the requirements for wills and powers of attorney resulting from the Orders.

    First, for both wills and powers of attorney executed and witnessed virtually, at least one witness must be a licensee within the meaning of the Law Society Act.  The LSO 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 virtually, 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 virtually may sign on separate complete, identical copies of the power of attorney, in counterpart. Together, these copies constitute the power of attorney.
     
    What requirements remain in place?
     
    Unless otherwise noted, all 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.
     
    Do the Orders change paralegal scope of practice?

    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 nor the Second Order 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 virtually executed.

    What process must be followed to complete the virtual execution of a will or power of attorney?
     
    The process to complete a virtual execution of a will or power of attorney pursuant to the Orders is not prescribed.

    To ensure a consistent process is used and documented, and to mitigate the risks associated with not being the physical presence of testators, donors, or witnesses, lawyers may wish to consider developing or adopting a checklist which can be used to help them execute wills or commission powers of attorney with the assistance of audio-visual communication technology.

    The following sample materials are provided to assist:

    Counterpart Will Execution Checklist, prepared by Hull & Hull LLP
    Counterpart PoA Execution Checklist, prepared by Hull & Hull LLP

    Best Practices for Virtual Commissioning during COVID-19 (PDF) (Word)
     
    Virtual Commissioning Checklist (PDF) (Word)

    You may also wish to review LawPRO’s article, How to lessen your risk of a malpractice claim when virtually witnessing wills and powers of attorney.
     
    Should wills or powers of attorney be executed virtually in all instances?
     
    No. Despite the Orders, there may be times when the execution of a will or power of attorney should not be conducted virtually.  For each matter, lawyers should assess the circumstances and client instructions to determine if a virtual 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 virtual execution, decline to proceed with a virtual execution, or, in some cases, refuse to act in or withdraw from the matter.
     
    How can I assist a client who wishes to make a will if neither virtual nor in-person execution are possible?

    Where virtual and in-person will execution are not possible, lawyers may wish to explore the use of holograph wills with their client. For more information, consider reviewing: 

    Emergency Holograph Wills for Clients in Isolation
     
    What other supports are available in respect of will or power of attorney execution during COVID-19?

    New CPD Program: For more information on the practice of Wills and Estates during COVID-19, including the impact of the First Order, lawyers may wish to view the Law Society’s CPD program. Program registration and details are available at the LSO Store. Please note that this program was produced before the Second Order was issued.

    Practice Management Helpline: If lawyers have specific questions about how to comply with their professional obligations or navigate practice management issues in the context of COVID-19, they may wish to contact the Law Society’s Practice Management Helpline at 416-947-3315 or toll free 1-800-668-7380 extension 3315, Monday to Friday 9 a.m. to 5 p.m. EDT, and select the option to connect with the Helpline.

    Coach and Advisor Network: Lawyers and paralegals can access the Law Society’s Coach and Advisor Network, which provides access to short-term, outcome-oriented relationships with Coaches and Advisors drawn from the professions. Coaches support the implementation of best practices and Advisors assist with substantive and procedural law inquiries on client files. Lawyers and paralegals can request time with a Coach or Advisor here.

    [See disclaimer.]

    Last updated: April 24

*The COVID-19 Pandemic is a rapidly developing event. The Law Society of Ontario has prioritized speed and breadth in assembling resources that may be of use to licensees in this extraordinary time. Selection for inclusion is not an endorsement of the material or its author, and the Society cannot guarantee the quality or accuracy of the content. Licensees must exercise their own professional skill and judgement when adopting and applying any of the legal information contained in these materials. This compilation is not exhaustive, and the Society may add or remove material at any time.

Terms or Concepts Explained