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Commissioner for Taking Affidavits

In Ontario, the practice of commissioning is governed by the Commissioners for Taking Affidavits Act (the “Act”). A commissioner for taking affidavits is a person who is entitled to take affidavits and administer oaths, declarations, and affirmations in accordance with the Act (a “Commissioner”).  

Commissioners by Virtue of Office

All persons licensed under the Law Society Act to practice law or provide legal services in Ontario are designated Commissioners, and are not required to apply for a commissioner appointment or pay an appointment fee, by virtue of their office (s. 1(1) of the Act and s. 1(1) of  O. Reg. 386/12 made under the Act). In other words, lawyers and paralegals licensed by the Law Society are deemed to be Commissioners for the purposes of the Act.

Lawyers and paralegals in all fee-paying categories (i.e., 25%, 50%, or 100%) and those who are granted fee exemptions may act as Commissioners. 

Restrictions

Lawyers and paralegals who surrender their licence or whose licence is suspended or revoked by the Law Society are no longer entitled to practise law or provide legal services in Ontario and therefore cannot continue to act as a Commissioner.  A lawyer or paralegal’s Commissioner status may also be revoked in accordance with the Act

When exercising their authority as a Commissioner, lawyers and paralegals should refrain from providing legal advice unless retained to do so and the provision of such advice is appropriate taking into consideration the relevant circumstances. 

Responsibilities

Section 9(1) of the Act provides that every oath and declaration must be taken by the deponent or declarant in the physical presence of the Commissioner or other person administering the oath or declaration.  

Where a Commissioner is not in the physical presence of a deponent or declarant, the Commissioner may administer the oath or declaration remotely if the conditions identified in section 1 of O. Reg. 431/20 made under the Act are met.

Lawyers and paralegals should consult the Act, its Regulations, and the Additional Resources below for more information about the requirements for commissioning in the physical presence of the deponent and for remote commissioning.

Additional Resources:

Guide for Newly Appointed Commissioners for Taking Affidavits
Remote Commissioning
Best Practices For Remote Commissioning
Remote Commissioning Checklist
Mobile Commissioning for Lawyers: Delegation and Supervision Responsibilities, Risks and Practice Tips
Mobile Commissioning for Paralegals: Responsibilities, Risks, and Practice Tips
Notary Public

Terms or Concepts Explained