Law Society Practice Directive Update

May 13, 2020

As the new processes for the remote witnessing and execution of certain documents begin to find their way through the court process, we are aware that some members have questions regarding the Court of Queen’s Bench interpretation of the Government of Saskatchewan’s emergency regulations. These regulations allow lawyers to commission and witness certain documents remotely using electronic means. Specifically, the questions we address in this communication pertain to the interpretation of The Electronic Information and Documents (Public Emergencies) Regulations (impacting The Electronic Information and Documents Act, 2000) and The Wills (Public Emergencies) Regulations (impacting The Wills Act, 1996). 

As you are aware, those legislative amendments expressly reference the need for compliance with any requirements established by the Law Society of Saskatchewan. Law Society Practice Directives 1 and 3 set out those requirements. Further guidance can be found in the Q&A documents developed by the Saskatchewan Ministry of Justice supporting those amendments. The ultimate purpose of the Practice Directives is to establish procedures and implement safeguards in the processes authorized by these regulatory amendments. 

While some of the emergency regulations that have been enacted are highly prescriptive in nature, such as the process for remote signing of Land Registry documents, as well as the “wet ink” signature requirements in The Wills Act, the EIDA Regulations are less prescriptive in nature. As is the normal process, where legislative amendments are not highly prescriptive in nature, those amendments are subject to interpretation, by both practitioners and ultimately the Courts. 

The Court of Queen’s Bench in its Practice Directive dated March 19, update April 23 provides that:

• while the presiding Justice will make the final determination in each specific matter, it is reasonable to expect that the process prescribed by the Law Society will be followed by all lawyers who are filing evidence in support of an application: either to proceed based on urgency, or on the merits of the application. In the event it is not possible for a lawyer to meet the terms of the Law Society Directive, that lawyer may wish to seek leave from the presiding Justice to have their client/witnesses present by telephone at the hearing of the matter to swear or affirm the document. In that regard, while there may be some leniency at the initial stage where matters are proceeding on a time-sensitive basis, by the date of a chambers hearing it would only be in exceptional circumstances that the Court should be asked to administer affirmations/oaths where a lawyer is involved.

Members are reminded to review the processes and procedures established by the pertinent Emergency Regulations and supporting Practice Directives as they relate to the remote execution and witnessing of certain documents. For further information and resources, please visit our COVID-19 webpage, or contact us if you require further information or assistance.