New Normal – Part 3 – Estate & Elder Law Litigation – Affidavits

We started our “New Normal” blog series last month, which explores how the practice of law has changed here in British Columbia in light of COVID-19. So far, we’ve posted on matters relating to general practice and estate planning. This week, we are exploring a number of subtopics relating to estate litigation, and we’re starting with affidavits.

Affidavits

As per the Law Society of British Columbia’s Notice to the Profession, COVID-19 Update: Commissioning Affidavits and Information from the Courts, dated March 20, 2020:

“where lawyers reasonably determine that circumstances require virtual commissioning of an affidavit and follow the procedure in the Court’s notice, the Law Society will consider the requirement that the deponent be physically present before the lawyers… to have been met” [emphasis added]”.

As at March 20, 2020, the British Columbia Provincial Court, the Supreme Court of British Columbia, and the British Columbia Court of Appeal have permitted oaths through video technology (updated March 27, 2020).

As per the Court’s direction and that of the Law Society of BC, examples of circumstances in which virtual commissioning is required include:

· deponents who are unable to leave their residence;

· deponents who are not permitted to receive visitors;

· deponents or commissioners required to self-quarantine.

Note that remotely commissioning an affidavit must be done by videoconference, not by telephone. Commissioning an affidavit via audio alone could give rise to a negligence claim and/or discipline for professional misconduct.

Procedure for Commissioning an Affidavit via Video Technology:

1. Include a paragraph in the affidavit that confirms that the deponent was not physically present with the commissioner and that the required procedure was followed (consider attaching the Notice by the Court as an exhibit to the affidavit).
2. Confirm identification. During the videoconference, ask the deponent to show the commissioner the front and back of their government issued photo ID. The commissioner must take and keep a screenshot of the front and back of the ID. The ID must be valid and current.
3. Both the deponent and the commissioner must have full copies of the affidavit in front of them (including exhibits!).
4. The commissioner reviews each page with the deponent, including exhibits, to ensure that both the commissioner and the deponent have identical copies. Both the commissioner and the deponent must initial each page on their respective copy in the bottom right corner as each page is reviewed.
5. The commissioner administers the oath in the usual course, including watching the deponent sign their name.
6. The deponent then sends the signed affidavit to the commissioner electronically.
7. The commissioner then compares each page of the signed affidavit and the one before them in the video conference to ensure they are identical.
8. Once the commissioner is satisfied that the copies are identical, the commissioner may “affix their name to the jurat” (by use of “affix” it appears that an electronic signature could be sufficient).
9. When filing, the affidavit package must include:
   1. the executed affidavit (with deponents and commissioner’s signatures);
   2. the commissioner’s copy with their initials; and
   3. the certificate signed by the commissioner stating that the commissioner was “satisfied that the process was necessary because it was impossible or unsafe, for medical reasons” to be “physically present together”.