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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.

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 can be done to protect the health and safety of lawyers, paralegals, employees and clients in the workplace?
    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 physical 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 attend court proceedings or 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 physical 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:


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


    Last updated: June 26

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 physical distancing

    In the context of COVID-19, public health best practices include physical 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?

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 remote or virtual commissioning?
    Yes, provided that certain conditions are met.

    Legislative Amendments Now Permit Remote Commissioning:
    In Ontario, commissioning, including remote or virtual commissioning, is governed by the Commissioners for Taking Affidavits Act (the “Act”) and is not regulated by the Law Society.

    Effective August 1, 2020, section 9 of the Act provides that:

    •    an oath or declaration must be taken by the deponent or declarant in the physical presence of the commissioner, and 

    ​•    where a commissioner is not in the physical presence of the deponent or declarant, the commissioner may administer the oath or declaration remotely if the conditions set out in O. Reg. 431/20, Administering Oath or Declaration Remotely (the “Regulation”), are met.

    Conditions for Remote Commissioning:
    Lawyers and paralegals who wish to engage in remote commissioning must meet the following conditions as prescribed under section 1 of the Regulation:

    1. See, Hear, and Communicate in Real Time. The commissioning must take place by an electronic method of communication in which the commissioner and the deponent can see, hear, and communicate with each other in real time throughout the entire transaction. 

    2. Confirm Deponent’s Identity. The commissioner must confirm the identity of the deponent.

    3. Use a Modified Jurat. The commissioner must use a modified version of the jurat that indicates commissioning was administered in accordance with the Regulation, and the location of the commissioner and the deponent at the time of commissioning. For an example of a modified jurat for a remotely commissioned document, see the Ministry of Attorney General’s Guide for Newly Appointed Commissioners for Taking Affidavits [See disclaimer].

    4. Ensure Deponent’s Understanding. The commissioner must take reasonable precautions in the execution of the person’s duties, including ensuring that the deponent understands what is being signed. 

    5. Maintain Record of Remote Commissioning. The commissioner must keep a record of the transaction.

    In addition to satisfying the Regulation’s requirements, lawyers and paralegals who choose to use remote commissioning should also be alert to the risks associated with remote commissioning and consider adopting the risk mitigation strategies outlined below in the FAQ: “How should a lawyer or paralegal remotely commission documents?

    Last updated: August 1, 2020
  • How should a lawyer or paralegal remotely commission documents?
    When engaged in remote commissioning, lawyers and paralegals must comply with the conditions set out in the Regulation and outlined above (see FAQ: “Can a lawyer or paralegal use remote or virtual commissioning?"). 

    Lawyers and paralegals should also be aware of the risks associated with remote commissioning and take steps to mitigate those risks. This includes developing or adopting best practices and/or using a checklist.

    Risks of Remote Commissioning:

    If a lawyer or paralegal chooses to use remote 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.

    Practice Tips for Mitigating Risks:

    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 can assist the client at this time without meeting in person.
       
    • Consider whether the deponent requires accommodations or there are any special circumstances to address and take appropriate steps. For more information, review the “Special Cases” section of the Ministry of Attorney General’s Guide for Newly Appointed Commissioners for Taking Affidavits. [See disclaimer.]
       
    • 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 remote 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.
       
    • Use best practice resources to guide and document the remote commissioning process.

    Best Practice Resources for Lawyers and Paralegals:

    Lawyers and paralegals should consider developing or adopting best practices and/or a checklist to:
    • Ensure a consistent process is used and documented, and
    • Mitigate the risks associated with not being in the physical presence of deponents.

    The following resources have been prepared and recently updated by the Law Society to assist lawyers and paralegals:

    Best Practices for Remote Commissioning

    Remote Commissioning Checklist

    Remote commissioning is a new practice and is expected to evolve as new remote meeting platforms and security safeguards are developed. The Law Society will continue to explore potential enhancements and will update its guidance as appropriate.

    Last updated: August 1, 2020
  • Can a lawyer or paralegal use remote or virtual notarization in the context of COVID-19?
    This guidance replaces the guidance that the Law Society had provided during COVID-19, prior to the Notaries Act amendments coming into force.

    Notarizing is governed by the Notaries Act (the “Act”) and is not regulated by the Law Society. Lawyers and paralegals acting as a notary public are required to comply with the requirements set out in the Act.

    Effective August 1, 2020, amendments to the Act allow for remote notarization if regulations made under the Act so provide and the conditions set out in the regulations are met.
     
    Regulations permitting or setting out conditions for remote notarization have not yet been made. As a result, the Act does not permit lawyers and paralegals to remotely notarize documents at this time.
     
    The Law Society will provide updates to the legal professions about remote notarization if regulations are introduced.
     
    Note: Amendments to the Commissioners for Taking Affidavits Act and a new Regulation on remote commissioning also came into force on August 1, 2020. These amendments and the Regulation enable remote commissioning if the conditions set out in the Regulation are met. For more information see the above FAQs on Commissioning.

    Last updated: August 1, 2020
     

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

  • Is remote execution and witnessing of wills and powers of attorney permitted in the context of COVID-19 and, if so, what are the requirements?*
    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 or wills and powers of attorney are permitted until November 21, 2020, unless otherwise extended by the Lieutenant Governor in Council.
     
    This FAQ addresses the
    • Legislative authority for remote execution and its continuation
    • Changes to in-person execution requirements
    • Continuing execution requirements
    • Scope of practice and role of paralegals
    • Process and best practices for remote execution
    • Limits on remote execution
    • Alternatives to remote and in-person execution, and
    • Other supports related to the changes.
     
    What is the legislative authority for remote execution and its continuation?

    Pursuant to section 7.0.2(4) of the Emergency Management and Civil Protection Act (the “EMCPA”), on April 7, 2020, the Ontario government issued an emergency Order in Council (“First Order”), which permitted wills and powers of attorney to be executed and witnessed remotely in certain circumstances. The Ontario government issued a second emergency Order in Council on April 22, 2020 (“Second Order”), which revoked the First Order. The Second Order was subsequently extended under the EMCPA until July 29, 2020.
     
    On July 21, 2020, the Ontario government introduced the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (the “Reopening Ontario Act”).  The Reopening Ontario Act came into force on July 24, 2020.
     
    Pursuant to section 2(1) of the Reopening Ontario Act, the Second Order was continued as O. Reg. 129/20, Signatures in Wills and Powers of Attorney. Section 3 of the Reopening Ontario Act provides that O. Reg. 129/20 remains in force for 30 days after it is continued, unless otherwise extended by the Lieutenant Government Council. On August 20, 2020,  O. Reg. 458/20 extended the effective period of O. Reg. 129/20 until September 22, 2020. On September 17, 2020, the effective period of O. Reg. 129/20 was further extended to October 22, 2020.  On October 19, 2020, O. Reg. 589/20 amended O. Reg. 458/20, and extended the effective period of O. Reg. 129/20 to November 21, 2020.
     
    Accordingly, O. Reg. 129/20 continues to permit the remote execution and witnessing of wills and powers of attorney until November 21, 2020, unless otherwise extended.
     
    What requirements for wills and powers of attorney executed and witnessed remotely have changed?
     
    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.
     
    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 or O. Reg 129/20 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 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.

    What process must be followed to complete the remote execution of a will or power of attorney?
     
    The process to complete a remote execution of a will or power of attorney pursuant to O. Reg. 129/20 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 Remote Commissioning
     
    Remote Commissioning Checklist

    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 remotely in all instances?
     
    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.
     
    How can I assist a client who wishes to make a will if neither remote nor in-person execution are possible?

    Where remote 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?

    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: October 21, 2020

*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