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Definitions

18.01  The following definitions are applicable to this Rule and its related Forms:

member” means a lawyer as defined in the Commissioners for Oaths Act, Notaries Public Act, Registration of Deeds Act, 2009 and the Wills Act.

Requirements  

18.02  A member must not witness, commission or notarize a document via audio-visual technology under the Commissioners for Oaths Act, Notaries Public Act, Registration of Deeds Act, 2009 and the Wills Act unless the member:

a) complies with the applicable legislation and this rule; and
b) has professional liability insurance that covers witnessing, commissioning or notarizing that document or is eligible to be indemnified by the member’s employer for witnessing, commissioning or notarizing that document.

18.03  When witnessing, commissioning or notarizing a document via audio-visual technology, members must comply with the requirements in Rule 16 as well as confirm the signatory’s identity by:

a. requiring that the signatory display government-issued photo identification;
b. ensuring that the government-issued identification is valid, authentic and current;
c. comparing the image on the government-issued photo identification with the signatory to be reasonably satisfied that it is the same person;
d. obtaining a screen capture or a photo of their screen showing the face of the signatory alongside the signatory’s government-issued photo identification;
e. treating the interaction as a high-risk interaction and monitoring the situation accordingly; and
f. recording the date and the details of how the signatory’s identity was confirmed.

18.04  Notwithstanding Rule 18.03, where:

a. a signatory does not have government-issued photo identification that is valid and current but the signatory is known to the member; and
b. the matter does not involve any of the following:

i. the receiving, paying or transferring of funds as outlined in Rule 16.04;
ii. the witnessing of a will; or
iii. the witnessing, notarizing or commissioning of a document under the Registration of Deeds Act, 2009,

a member may confirm the signatory’s identity for the purpose of witnessing, commissioning or notarizing a document via audio-visual technology by:

c. complying with Rule 16.06(6)(a)(ii) or Rule 16.06(6)(a)(iii); and
d. executing an affidavit outlining:

i. the member’s belief that the signatory does not have government-issued photo identification that is valid and current and the reasons for that belief;
ii. the particulars of how the signatory is known to the member;
iii. the reasons for the member’s belief that the signatory is who they claim to be; and
iv. the particulars of the matter.

Mitigating the Risks

18.05  Before witnessing, commissioning or notarizing a document via audio-visual technology, members must take the following steps:

a. consider whether there are red flags of fraud associated with the matter;
b. assess whether there is a risk that the signatory may be subject to undue influence or duress, including observing who else is physically in the room with the signatory during execution of documents;
c. confirm the signatory’s understanding of the documents they are executing and provide adequate opportunity for them to ask questions before they execute the document; and
d. take any other measures to mitigate the risks associated with fraud, identify theft, undue influence, duress and potential lack of capacity that are reasonable in the circumstances.

18.06  Members must decline to act where they are unable to take the steps to mitigate the risks found in Rule 18.05.

Recording Requirements

18.07  Members must concurrently prepare a written record detailing how the risks outlined in Rule 18.05 were mitigated by completing Law Society Form 18: Witnessing, Commissioning and Notarizing Documents via Audio-Visual Technology.  A copy of the screen capture or photo of the screen required under Rule 18.03(d) or the affidavit outlined in Rule 18.04(d) must be appended to the Form.

18.08  Members must:

a. maintain the original Form in the client’s file where the signatory is a client and in a central location where the signatory is not a client; and
b. provide the signatory with a copy of the Form.

Additional Requirements for Witnessing a Will

18.09  In addition to the other requirements outlined in this Rule, members witnessing a will via audio-visual technology must:

a. upon receipt of an original signed but unwitnessed, or partially witnessed, will from a testator, and before signing as a witness, complete a line-by-line comparison of the will against the document that the member created and sent to the client to ensure that it has not been altered in transit;
b. where the member did not draft the will and is acting as a witness only, the member shall, before signing as a witness, read the entirety of the will to the testator during the meeting via audio-visual technology to confirm the intentions of the testator;
c. record the name of the second witness to the will and their relationship to the testator; and
d. concurrently prepare a Proof of Will in accordance with the Rules of the Supreme Court, 1986 and amend the jurat on the Proof of Will to include the words “via audio-visual technology”.

Registration of Deeds Act, 2009

18.10 For greater certainty, “executed in the province” for the purposes of section 15 of the Registration of Deeds Act, 2009, means an instrument executed by a signatory physically present in the province and witnessed by a member who, at the time of witnessing the instrument, is physically in or outside the province.

Date of Document

18.11 The date of the document is the date the document is signed by the signatory, not the date the document is signed by the member.

Coming into Effect

18.12  This Rule shall take effect on the day the Alternate Witnessing of Documents Amendment Act comes into force.