By Joe Thorne and Megan Kieley

Background

During the COVID-19 public health emergency order in Newfoundland and Labrador, the government passed the Temporary Alternate Witnessing of Documents Act, which (as the name implies) temporarily permitted lawyers to commission, notarize, and otherwise authenticate documents remotely by video.

That temporary legislation was rescinded along with the public health emergency order in March 2022.

Fortunately, the government has made those temporary changes permanent.

Bill 23: Alternate Witnessing of Documents Act (the “Act”) amends several pieces of legislation (in particular, the Commissioners for Oaths Act,^[1] the Notaries Public Act,^[2] the Registration of Deeds Act,^[3] and the Wills Act^[4]) to allow lawyers to witness, notarize, and commission certain documents remotely using audio-visual technology – defined as that which “allows people signing documents and people witnessing documents to see, hear and communicate with each other at all times”. It received Royal Assent on May 25, 2023.

The permanent adoption of remote witnessing is a step forward for access to justice in this province. The ability to commission affidavits or notarize documents anywhere in the province will reduce legal costs and other barriers to efficient legal services.

Summary of Changes Made by the Act

Commissioners for Oaths Act

• Lawyers entitled to practice in the province are commissioner for oaths by virtue of their Bar membership. The Act amends the Commissioners for Oaths Act to allow lawyers in good standing with the Law Society to commission documents stated in the existing legislation (e.g. affidavits, declarations, affirmations or certificates) by using audio-visual technology. In so doing, they must comply with the requirements in the existing legislation along with the requirements prescribed in the regulations regarding audio-visual technology. This would include writing or stamping the word “Barrister” below their signature as is stated in the current Commissioners for Oaths Act.

Notaries Public Act

• An important distinction that the Act makes in amending the Notaries Public Act is that not all notaries are given the power to witness documents brought before them using audio-visual technology.
• The Act amends sections 6 and 8 of the Notaries Public Act and only allows notaries who are lawyers (in good standing with the Law Society) to witness documents and administer oaths, affirmations, or declarations using audio-visual technology. Such notaries must also comply with the requirements prescribed in the Regulations and still affix their notary public’s notarial seal and sign their name to the relevant document.

Registration of Deeds Act

• The Act amends section 15 to add that audio-visual technology is allowed to be used when documents are executed in the province in the presence of a commissioner for oaths and notary public where they are a lawyer and in compliance with the requirements prescribed by the regulations.
  • Section 15(3), as proposed in the Act, also requires that instruments (as defined in the current legislation) witnessed through audio-visual technology shall include the original signatures of the persons signing and witnessing the instrument before it is submitted for registration.
• Unfortunately, the Act does not amend section 16 regarding documents executed outside the province – those must still be executed in person before one of those persons listed in that section.

Wills Act

• The current Wills Act requires that a will not hand-written by a testator, be witnessed by at least two people.
• The Act amends section 2(1.2) to say that if only one of the witnesses to the signing of a will is a lawyer, attendance with audio-visual technology only applies to the lawyer and not to the other witness. In other words, only lawyers can witness the signing of a will with audio-visual technology. Other witnesses are excluded from this provision.

Rules for Remote Commissioning

The Act requires lawyers to follow regulations that may be adopted and requirements prescribed by the Law Society in witnessing documents remotely. As of the date of this article, those regulations have not yet been published.

The requirements for remote commissioning during the pandemic were prescribed in Rule 18 of the Law Society’s Rules. Given the similarity between the Act and its temporary predecessor, it is likely that regulations will take a form similar to that of Rule 18.

Rule 18: General Law Society Requirements

Rule 18^[5] outlined the Law Society’s requirements for members witnessing, commissioning and notarizing documents through audio-visual technology during the pandemic. The main requirements to witness documents using audio-visual technology were as follows:

• Members must have professional liability insurance that covers witnessing, commission or notarizing of documents; or be indemnified by their employer for witnessing, commissioning or notarizing that document;
• Members must follow Rule 16 of the Law Society’s requirements for client identification and verification, in addition to the following steps:
  • Require that a signer display valid and current government issued photo identification;
    • Where a client does not have valid or current government issued photo identification, members may verify a client by complying with the Rule 16 provisions, executing an affidavit outlining the member’s belief that the client does not have valid or current government issued photo identification and the reasons for that belief, the particulars of how the client is known to the member, and the reasons for the member’s belief that the client is who they claim to be and the particulars of the matter. This only applies where the document being witnessed is not a will or a document under the Registration of Deeds Act;
• Compare the image on the identification with the client and be reasonably satisfied that it is the same person;
• Obtain a screen capture or photo of their screen showing the face of the signer alongside their photo identification;
• Treat the interaction as a high-risk interaction and monitor the situation accordingly; and
• Record the details of the date and method of verification.

Risk Mitigation

A guidance document from the Law Society was distributed^[6] to assist members’ understanding of Rule 18. The document outlines some of the risks that members should be aware of and some suggested ways to manage those risks when witnessing documents remotely.

In an audio-visual technology environment, there are risks that a client may be subject to undue influence, lack of capacity, or duress. There may also be issues relating to identity theft, fraud or money laundering. In managing such risks, lawyers must consider any red flags. They must also observe who else is physically in the room with the client during the execution of the documents. Should there be someone else in the client’s remote location, lawyers may ask that all individuals in that location introduce themselves to ensure that no one is improperly influencing the client.

It was also suggested in the guidance document that lawyers confirm the client’s understanding about the documents they are executing and provide them with adequate opportunity to ask questions during the video conference.

If a risk cannot be managed or mitigated, the lawyer or member must decline to witness, commission or notarize any document using audio-visual technology.

Recording Requirements

Pursuant to the temporary remote commissioning regime, witnessing a document using audio-visual technology required the lawyer to concurrently prepare a written record in Law Society Form 18.^[7] Lawyers were to fill out Form 18 to record and detail how the risks outlined above were managed. The form was to be maintained in the client’s file and a copy of the form provided to the client.

Requirements for Witnessing a Will under Rule 18

If a lawyer received a signed will that was unwitnessed or partially witnessed, they must complete a line comparison of the document sent to them against the document they created and initially sent to their client. This must have been done before they signed as a witness. This was an important step to take when audio-visual technology is involved in the witnessing of a will because it helps ensure that there were no unauthorized alterations made while the document was in transit.

Where a lawyer is acting as a witness only, they shall read the entirety of the will to the testator during the meeting using audio-visual technology to confirm the intentions of the testator.

The witnessing lawyer must also record all details regarding the second witness to the will. They must also concurrently prepare a Proof of Will in accordance with the Rules of the Supreme Court, 1986 and amend the jurat to include “via electronic means in accordance with the Temporary Alternate Witnessing of Documents Act”.

For the purposes of the Act, this will likely be amended or modified to accord with the corresponding legislation.

Takeaways

The Act supports access to justice by reducing cost and time associated with routine legal matters.

However, while a very welcome change, the legislation fails to address certain issues that would – in the authors’ views – have increased its benefit to the public and to the Bar.

The Act applies only to lawyers in good standing with the Law Society of Newfoundland and Labrador. Therefore, non-lawyer commissioners and notaries cannot exercise their powers remotely and must continue to do so in person.

While the reason for this restriction is unclear, it may be related to lawyers’ regulatory requirements described above serving as a “safety net” for the use of audio-visual technology. A concern that such a safety net is required is misplaced – notaries and commissioners under the existing legislation are just as capable of following regulations. While non-lawyer notaries and commissioners are not bound by the Law Society Rules, they would be bound to follow the regulations of their respective statutes. In that sense, there would be no difference between the requirements for a lawyer witnessing a document remotely and those who are authorized to be a a commissioner for oaths or notary.

Nevertheless, this new legislation will make legal services more accessible and less costly, which is a benefit to all participants in the justice system.

This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact the authors.

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[1] RSNL 1990, c C-25
[2] RSNL 1990, c N-5
[3] SNL 2009, c R-10.01
[4] RSNL 1990, c W-10
[5] Rule 18 Law Society https://lsnl.ca/lawyers-students/lawyer-regulation/law-society-rules/part-xviii/#Purpose
[6] Guidance Document https://lsnl.ca/wp-content/uploads/2020/05/Guidance-Document-with-AW-Comments-and-BBG-Comments-copy.pdf
[7] Law Society Form 18: https://lsnl.ca/wp-content/uploads/2020/05/Law-Society-Form-18-2.pdf