Law Society Is Right About Virtual Commissioning

• Author: Pulat Yunusov
• Date: November 07, 2019

I want to start this column by reiterating how damaging the Law Society of Ontario web linking agreement is. It’s part of the terms of use of the Law Society’s website and it prohibits links to the entire website (except to http://www.lso.ca) without the Law Society’s prior written consent. Google this legal notice because I am not linking to it. (By the way, did Google get LSO’s written consent before indexing its website?) I am not even going to post a screenshot here because of restrictions that the Law Society purports to assert in its terms of use. Find all of the above yourself. It’s enough to say two things about these restrictions: (1) in the age of the Internet, prohibiting links to your public website (which apparently does not use technical means to restrict automated linking by search engines) invites massive breaches of your terms of use not because people are bad but because this is how the Internet works—accordingly, it puts the weight (and enforceability) of LSO’s terms of use in doubt; and (2) it stifles legitimate debate and public access to the many materials on the LSO website that are there to promote access to justice in the first place.

Now that this is out of the way, I have to say that I completely agree with the Law Society’s best practice recommendation about virtual commissioning that I recently saw. Let me explain why.

Law Society of Ontario published a virtual commissioning best practice recommendation on its website. I don’t known when they did it because the page does not have a date. You will have to take my word for it or google it yourself (because I can’t link to it without requesting and obtaining a written consent of the Law Society—sorry for going on and on about this).

The gist of the recommendation is two-part. First, it’s to protect the integrity of evidence and of administration of justice. Commissioners get their power to administer oaths and affirmations on condition that they screen witnesses and documents for certain attributes. For example, commissioners must know or verify witnesses’ identity, make sure that witnesses give evidence freely and knowingly, and see that the oath or affirmation appears to bind the witness’s conscience. Modern technology is not yet where we can simply assume that virtual commissioning will satisfy these requirements. I will go into the first principles of commissioning below to show why even such a technology proponent as I agrees with the Law Society on this.

Second, it’s to protect witnesses and clients (also commonly known among lawyers as protecting yourself.) The witness and the commissioner may execute different or wrong documents by mistake because they rely on imperfect technology and couriers to exchange documents rather than directly hand each other the same document for signing. Voice communications may be unreliable and the witness may assume something they say is true but fail to notice that the commissioner misheard them or did not hear them at all.

Both grounds for recommending against virtual commissioning are valid and they should apply to both commissioning affidavits and examining witnesses by video conference.

But first consider the single most basic duty of the commissioners under Ontario law (Commissioners for taking Affidavits Act, s. 9–11):

9 Every oath and declaration shall be taken by the deponent in the presence of the commissioner, notary public, justice of the peace or other officer or person administering the oath or declaration who shall satisfy himself or herself of the genuineness of the signature of the deponent or declarant and shall administer the oath or declaration in the manner required by law before signing the jurat or declaration.

10 Every commissioner, notary public, justice of the peace or other officer or person...