Manitoba Law Reform Commission releases discussion paper examining electronic augmentation for taking of affidavits and other documents

The Manitoba Law Reform Commission has released a discussion paper entitled Bridging the Gap for Remote Communities: Electronic Witnessing of Affidavit Evidence. The Commission’s project originated back in 2017, when members of the Manitoba bar brought to its attention the fact that people living in the province’s more remote communities often have trouble accessing a person who is qualified to take the swearing or affirmation of affidavits. While the Manitoba Evidence Act provides for a fairly broad variety of “authorized individuals” who may take affidavits, the preliminary evidence gathered by the Commission indicates that people living in some communities nonetheless are not able to find an “authorized individual” locally. Such people must incur the time and expense to travel to a more populated/urban area, which both creates delays in all manner of legal proceedings and transactions, and presents as a potentially significant access to justice issue.

The main issue is that the relevant statutory language has been interpreted in Manitoba, as in most provinces and other common law jurisdictions, to require that affidavits be sworn in the presence of the “authorized individual,” and thus the use of electronic means is not permitted. In the only relevant Canadian case to date, First Canadian Title Co v. Law Society of British Columbia, the court decided against a motion to allow the execution of a land title instrument via video link. As the Law Commission report explains:

…the court acknowledged concerns raised by the Ethics Committee of the Law Society of British Columbia about an overly broad interpretation of the presence requirement allowing for witnessing of documents remotely such as, how to ensure the affiant understands the content of the affidavit, ensuring the signature is genuine, proper identification of the affiant and concerns about changes to the document between the signature of the affiant and of the witness.

In a survey of the relevant law and practice in various Canadian and foreign jurisdictions, the Commission took note of Bill 161, currently before the Ontario legislature, which does two things: 1) makes the requirement of physical presence before the authorized individual explicit; but 2) creates the potential for exceptions to this requirement, to be added in regulations after the bill is passed. Remarks by the Attorney General of Ontario indicate that the government’s attention is to authorize electronic commissioning and notarizing. Further, the Law Society of Alberta has created a pilot project called the “TreeFort Platform” which would allow for secure online meetings between lawyers and clients at which documents could be executed and certified. Also, the US state of Virginia has brought in legislation allowing for electronic notarization via video- and tele-conferencing and digital signature technology.

The Commission has identified a number of issues for discussion, on which it is seeking feedback by February 20, 2020, including:

1. Should The Manitoba Evidence Act be amended to remove the physical presence requirement in certain circumstances as is proposed by Ontario’s Bill 161?
2. If the Act is amended to enable electronic notarizing or commissioning of affidavit evidence, should standards be set to regulate those providing such services similar to the “standards of notarization” enacted in Virginia?
3. What safety measures should be required to ensure the privacy and security of documents being witnessed electronically and to respond to the concerns in First Canadian Title Company Ltd. such as the integrity of the document and ability to verify the signatory’s identity?
4. What criteria should be used to determine what software is allowable? Should such criteria be established by regulation?
5. What other issues relating to privacy and security may arise?
6. If the Manitoba Evidence Act should be amended to allow for affidavits to be taken using video-conferencing technology, should it be restricted to certain populations or certain situations?
7. Should a person witnessing the signing of an affidavit using video-conferencing technology be required to be physically present in Manitoba?
8. Should the affiant be required to be physically present in Manitoba when appearing before a witness using video-conferencing technology?