Executing Affidavits and Declarations During the COVID-19 Pandemic

As with many other industries, the legal industry has been impacted by COVID-19, and one of the implications is the executing of documents, while respecting “social distancing”.

In order to help prevent the spread of COVID-19, authorities are recommending that Canadians limit personal contact with others to the greatest extent possible. This phenomenon, which has become known as “social distancing”, naturally presents various challenges to the practice of law, which often requires frequent, in-person contact between lawyer and client. One of the most significant hurdles that “social distancing” creates for lawyers and clients relates to the execution of legal documents, such as affidavits and statutory declarations. In Manitoba, such documents must be executed in the presence of a practicing lawyer, notary public or other designated official, thereby necessitating a face-to-face meeting. The Manitoba Evidence Act does not permit an affidavit or statutory declaration to be sworn, affirmed or declared electronically.

In the face of the extraordinary circumstances presented by the COVID-19 pandemic, some Canadian courts and jurisdictions have already implemented a temporary loosening of the formal execution requirements applicable to affidavits and declarations. For instance, the Law Society of Ontario has recently released new guidelines which allow for the commissioning of affidavits over videoconference. The Manitoba Court of Appeal, meanwhile, is making an accommodation that affidavits and declarations that are subject to formal requisites can be filed without compliance with those requisites provided that they are filed together with an undertaking by the lawyer that a compliant original of the affidavit or declaration will be filed prior to the hearing date. This temporary accommodation, however, does not affect in any way the exclusive jurisdiction of a judge or master to ultimately receive any affidavit or declaration in evidence.

As of the date of this publication, the other levels of court in Manitoba have not announced a loosening of the formal execution requirements applicable to affidavits. Given that Manitoba courts are temporarily closed to virtually all non-urgent matters, it is likely that any immediate filing deadlines for affidavit evidence that were imposed upon or agreed to by parties prior to the closure will be extended. Accordingly, in many cases, parties should be able to postpone the execution and filing of affidavit evidence. However, if it is imperative that an affidavit or declaration be signed in the presence of a lawyer in the immediate future, the Law Society of Manitoba recommends the following:

    •  Maximize non-face-to-face communications by exchanging and reviewing drafts via email and phone;

    •  Minimize Personal Contact by limiting in-person meetings to 10 minutes, and confining activity to the verification of identity and document execution steps which require personal attendance;

    •  Maintain the recommended 1-metre distance between lawyer and client; and

    •  Follow all other precautionary protocols set out by public health authorities, including washing your hands thoroughly after each meeting.

 

Please do not hesitate to contact your relationship partner or lawyer if you have any questions or if we can be of assistance in guiding you through these new challenges.

This article was prepared by:

MATTHEW T. DUFFY
PARTNER
204.956.3564
[email protected]

KAREN POETKER
PARTNER
204.956.3571
[email protected]

ERIC BLOUW
LAWYER
204.956.3512
[email protected]

KARA MOORE
LAWYER
204.956.3554
[email protected]

This article represents general information and is not legal advice. Please contact us if you would like legal advice that is tailored to your particular circumstances. We would be happy to help.

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