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Remote Commissioning

Tools and platforms for the remote or virtual commissioning of documents are becoming increasingly prevalent. This resource aims to provide general information and guidance to lawyers and paralegals on the practice of remote commissioning. Specifically, this resource defines remote commissioning, briefly explains the legislative and regulatory requirements for remote commissioning, identifies the risks associated with this practice, and provides tips and resources to assist lawyers and paralegals with mitigating these risks.

At a Glance:

  • Effective August 1, 2020, Ontario commissioning legislation permits the practice of remote commissioning.
  • When engaged in remote commissioning, lawyers and paralegals must comply with the conditions set out in the regulation to the Ontario commissioning legislation. For more information, lawyers and paralegals should review the Commissioners for Taking Affidavits Act, O. Reg. 431/20, and the Ministry of Attorney General’s Guide for Newly Appointed Commissioners for Taking Affidavits.
  • Nothing in the Ontario commissioning legislation or its regulation obliges a receiving party to accept a document that has been commissioned remotely. Accordingly, lawyers and paralegals should determine if the receiving party is able and willing to accept remotely commissioned documents prior to engaging in such practice.
  • While the legislative and regulatory requirements for remote commissioning help mitigate the risks associated with such practice, the Law Society recommends that lawyers and paralegals consider adopting the additional risk mitigation strategies identified below and in the Law Society’s Best Practice for Remote Commissioning resource. Lawyers and paralegals should also consider documenting their remote commissioning processes using the 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 update this page as appropriate.

Remote Commissioning Defined

In Ontario, the practice of commissioning, including remote commissioning, is governed by provincial legislation, the Commissioners for Taking Affidavits Act (the “Act”). Commissioners for taking affidavits are entitled to administer oaths and take affidavits and statutory declarations. These are typically important legal documents that have evidentiary value in court and confirm accuracy for government offices.

The commissioner is responsible for verifying the deponent’s identity, administering an oath, witnessing the deponent’s signature, satisfying himself or herself as to the genuineness of the deponent’s signature, and executing the document by signing the jurat (which includes the manner in which the oath or declaration was administered, as well as the date on which and the location where the document was executed).

Remote commissioning is an authentication and signature process for taking affidavits and statutory declarations that uses audio-visual technology. It is therefore not conducted in the physical presence of the commissioner. An example of remote commissioning is a lawyer or paralegal who meets with a client via a video conferencing system and directs the client to sign the relevant legal document that is visible to the lawyer or paralegal through video.  The client then returns the original executed document to the lawyer or paralegal who, upon receipt, signs the document as a witness to the client’s signature. Another example is a client and a lawyer or paralegal logging into the same platform to view and electronically sign the same document simultaneously, despite being in different physical locations.

Applicable Legislation

Section 9(1) of the Act provides that every oath and declaration must be taken by the deponent in the physical presence of the commissioner, notary public, or any other person administering the oath or declaration.

Where a commissioner is not in the physical presence of a deponent or declarant, section 9(2) of the Act permits the commissioner to administer the oath or declaration remotely if the conditions identified in section 1 of O. Reg. 431/20 (the “Regulation”), made under the Act, are met.

Conditions for Remote Commissioning

Lawyers and paralegals must comply with the conditions set out in the Regulation when choosing to engage in remote commissioning:

  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.
  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.

To support commissioners in Ontario, the Ministry of the Attorney General has developed the Guide for Newly Appointed Commissioners for Taking Affidavits, which includes guidance on remote commissioning.

Risks of Remote Commissioning and Practice Tips to Mitigate Risk

Risks to clients, lawyers, paralegals, and other commissioners associated with remote commissioning have been set out below, along with some practice tips to assist lawyers and paralegals in mitigating these risks.

RIsk

Practice Tip

Fraud and Identity Theft: Where in-person meetings between the commissioner and the client are reduced or eliminated, there are greater risks of fraud and identity theft.

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.

Undue Influence: With remote commissioning, there is a greater risk that undue influence will go undetected. The commissioner may not be able to sufficiently assess whether there are any off-screen influences or other persons coercing the deponent.  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.
Reduced Level of Client Service: Without safeguards in place, there is a risk that the client is left without copies of documents they have executed remotely. There is also a risk that the client may not feel they have had an adequate opportunity to ask questions or request clarifying information about the documents they are executing, which risk is heightened by the lack of physical proximity.

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.

Technological Limitations/Uncertainty: Given varying video quality and network connections, as well as the fact that live streaming video and audio can be manipulated, it may be very difficult for a commissioner to confidently verify the distinct attributes of the document commissioned. Use best practice resources to guide and document your remote commissioning process.

Use Best Practice Resources

Although following the Regulation’s requirements for remote commissioning and the above practice tips will help to mitigate some of the risks associated with remote commissioning, the Law Society also recommends that lawyers and paralegals consider:

Related Resources

Best Practices for Remote Commissioning
Remote Commissioning Checklist
Commissioner for Taking Affidavits
Notary Public
Mobile Commissioning for Lawyers: Delegation and Supervision Responsibilities, Risks, and Practice Tips
Mobile Commissioning for Paralegals: Responsibilities, Risks, and Practice Tips
Client Identification and Verification Requirements for Lawyers
Client Identification and Verification Requirements for Paralegals


Please note that this resource does not address or provide guidance on the use of electronic signatures. Please consult the Electronic Commerce Act, 2000 for more information on this topic.

Terms or Concepts Explained