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Pandemic and Adjusted Procedures: Courts are Helping Lawyers… To Help You 

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Written by Russell Alexander / (905) 655-6335

Pandemic and Adjusted Procedures: Courts are Helping Lawyers… To Help You 

In the ongoing wake of the COVID-19 pandemic, Ontario courts and tribunals have had to temporarily suspend their operations, by shutting their doors and making themselves available for hearings only in truly urgent cases.

But not all legal work involves attending court, and not every case ends up before a judge or other decision-maker.  Lawyers are often called upon to make Wills, manage the documentation in a real estate transaction, and draft contracts.  Even much of the Family Law process involves lawyers preparing many documents and taking various procedural steps that do not involve attending court directly.

Whenever lawyers do this kind of work on behalf of clients, they are subject to numerous strict procedural requirements.  Some are imposed by the courts themselves, while others are mandated by the Law Society of Ontario.

Recent COVID-19-related government directives around social and physical distancing can make these requirements difficult or even impossible to comply with.  As a result, both the Law Society and some courts have accordingly modified and loosened them as a temporary measure.

Here is a summary of some of the changes, which are in effect as of early April 2020:

  • Commissioning affidavits: For those scenarios where a lawyer is acting in the specific role of a commissioner for taking affidavits, the governing legislation currently states that “every oath and declaration shall be taken in the presence” of the lawyer. However, in light of COVID-19, the Law Society is prepared to read that phrase as not requiring the lawyer to be in the physical presence of the client.  Instead, alternative methods such as videoconferencing are allowed.
  • Witnessing Wills: Lawyers are now allowed to have their clients execute Wills and Powers of Attorney using virtual means. Under an emergency Order-in-Council, the provincial government has temporarily loosened the legislative requirements around signatures in these specific types of documents.  The document execution now can take place using “audio-visual communication technology”, which is defined to mean “any electronic method of communication in which participants are able to see, hear and communicate with each other in real time”.  There are also special emergency directives for holograph Wills made by clients who are in isolation.
  • Client identification and verification requirements have not been suspended. In response to COVID-19, the Law Society has advised licensees that it will interpret the requirement that lawyers and paralegals verify the identity of their client face-to-face as not requiring the lawyer or paralegal to be in the physical presence of the client, thereby allowing verification of client identity via video conference. In addition, the LSO has advised licensees that the provincial government has extended the validity of identification documents, including driver’s licences, that expired on or after March 1, 2020. Information about these changes can be found in the LSO’s Practice Management FAQs available here and here.

Despite these short-term adjustments, lawyers are being admonished to still be on the alert for the risk of fraud and any “red flags” around identity theft, undue influence and the possibility that the clients who are executing documents from afar do not understand what they are signing.

For the text of the new court directives and Law Society of Ontario pronouncements, see:

Superior Court of Justice (Commercial List) (at paras. 13 and 14)

Superior Court of Justice (Civil and Family) (at section B.6)

Law Society of Ontario:  Best Practices for Virtual Commissioning during COVID-19

Will Execution by Video Checklist, and Emergency Holograph Wills for Clients in Isolation
prepared by Hull & Hull LLP

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.