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September 14, 2020

Videoconference witnessing and executing of legal documents during a pandemic

LAST UPDATED September 14, 2020

A crucial aspect of a lot of legal work — the execution of prescribed documents — has long involved face-to-face contact because of prescribed witnessing requirements. While our team of lawyers has remained available to attend to crucial in-person document executions throughout the COVID-19 pandemic while respecting physical distancing rules, this face-to-face signing was not possible or desired by many who are unable or too uncomfortable to attend in-person meetings.

Recognizing the significant impact on real estate transactions, in particular, the Property Registry (operated by Teranet Manitoba) was quick to respond, issuing a Directive on April 1, 2020, temporarily allowing for most instruments requiring a registrant’s signature to be witnessed via video link. The witness (who must be a lawyer or other designated professional), must complete a video witnessing certificate confirming they followed the requirements set out in the Directive. This Directive is currently in effect until October 1, 2020, and may be further extended by the Registrar-General’s Office.

The Property Registry Directive does not apply to oaths or affirmations governed by The Manitoba Evidence Act and excludes certain forms under The Homesteads Act. Until May 13, 2020, these and other legal documents, including wills and powers of attorney, could not be properly executed in accordance with legislated witnessing requirements without face-to-face meetings.

On May 13, 2020, the Manitoba government issued an Order under The Emergency Measures Act on the Temporary Suspension of In-Person Commissioning and Witnessing Provisions. This allows affidavits, statutory declarations, homestead consents, wills, powers of attorney, land titles documents and health care directives signed by a person other than the maker to all be witnessed by videoconferencing or through a glass or plexiglass partition.

Videoconferencing can allow for execution of these documents even if the witness and signor are not in the same jurisdiction. It also brings a level of access to justice to those in remote communities who do not have the ability to retain a lawyer in their location. The ability to sign through glass or plexiglass is especially useful for vulnerable clients, including those in an assisted living or personal care home.

Under the government Order, the witness or administrator of any required oath or affirmation must follow the steps set out in the attached Schedule whereby they confirm they are able to confirm the identity of the signor and see and hear them at all times while watching them sign the document. There are additional specific steps required by the Schedule for certain types of documents, so it must be reviewed and followed carefully. Any affidavit of execution must be altered to indicate that the document was executed in accordance with the Order under The Emergency Measures Act.

The Order has been extended and will remain in effect until March 30, 2021, but the Manitoba government does retain the discretion to revoke it sooner or extend it.

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Resource first posted on June 15, 2020, with a report from Annika Friesen.