Witnessing of ISC Documents and Swearing of Affidavits

March 19, 2020

On March 18^th the Registrar of Titles released a Direction relating to lawyer’s witnessing of ISC documents. In addition, on March 19^th, the Court of Queen’s Bench issued an updated Directive in relation to the swearing of affidavits.

As communicated to the membership yesterday in the COVID-19 Client interactions communication, the law society provided the following guidance:

• Courts have not accepted signatures via electronic means (ie: Facetime or Skype). However, in the Court of Queen’s Bench For Saskatchewan Directive issued March 19, 2020, the Court has directed that for “urgent matters” (as outlined in the Directive) the Court makes the following allowance:
• In the event that it is not possible to provide an emailed sworn affidavit, unsworn document may be filed provided the affiant is available by telephone or electronic communication to swear or affirm the document.
• The Law Society Ethics Committee recently questioned whether there is the legislative framework to allow a signature via technology. The Committee determined that though there is an opportunity for change, these issues may require legislative changes, and concluded:
• It is not for the Law Society to determine whether lawyers can alter jurats to reflect that a document was sworn via web-conference. This will be up to the Legislature and the Courts.
• As far as signing a document using technology, it depends on the document: what it says, what the lawyer is swearing, etc. Simply acting as a witness may be permitted, depending on the document. There are certain documents that cannot be signed via technology, due to legislation: testamentary documents and ISC transfer documents.
• Further, if a lawyer is purporting to have personally seen someone sign a document (in an affidavit or notarized document, for example), then the lawyer needs to be personally there to witness it. This comes directly from the BC Case, First Canadian Title v. Law Society of British Columbia: “attended in person” means that the lawyer attended in person and not via technology. Therefore, ‘in the presence of a lawyer” means that the client is in the physical, presence of a lawyer.

In consideration of the above, if you can see the client in-person while they are signing, you do not have to be in the same room as them. A suggestion is to have the client drive to your office and remain in their vehicle. You attend outside the car and watch them sign the document. Have the client immediately take a photograph of the document on their phone and email it to you right away. The client should then retain the original document until a later time.

As conditions and information evolves moment to moment, the Law Society continues to work with the relevant stakeholders (Ministry of Justice, the Courts, and ISC) around the relaxation of the formal requirements for a validly witnessed signature. However, as it is not within the legislated authority of the Law Society change the law in this respect, we can, in the interim, continue to provide our members with responsible work-arounds, and advice to assist in determining the safest ways to meet the legislated requirements while not jeopardizing the health of practitioners or their clients, the subsequent validity of executed documents, or increasing a member’s exposure to liability. 

The COVID-19 pandemic has created a novel situation for lawyers and clients alike. In these uncertain times it may be necessary for lawyers and clients to communicate more than ever while navigating new and innovative ways to conduct business. We encourage our members consult our growing list of resources available on our website or to contact law society staff at [email protected] with questions or concerns on how best to navigate these uncharted waters.