Video witnessing: How times have changed

How The Times Have Changed 

In response to the novel coronavirus (Covid-19) pandemic, in the spring of 2020 provincial governments across Canada began implementing various emergency measures.  The purpose of these measures was to help protect Canadians while at the same time seeking to minimize disruption to key services, such as legal services.  One such response was to allow for the witnessing—or “commissioning” in some instances—of certain legal documents by remote means; in other words, using video technology through popular video apps such as Zoom, Microsoft Teams, Facetime, Skype, WhatsApp and the like.  The rationale behind this was of course to decrease the number of in-person meetings in order to help to contain the spread of coronavirus.  

Most people know that, prior to the pandemic, just about every meeting they would ever need with a lawyer would be done the old fashioned way—across the table.  This is because of various laws and policies that require specific actions to be taken not only by the executing party, but also by the witness.  For example, for a person to provide written evidence they would typically need to sign in the physical presence of the witness for the document (or “instrument”) to be validly executed.

At this point it is worth noting that, generally speaking, the legal profession has been wary to entertain changes to existing signing and witnessing rules.  It’s also important to distinguish between an “electronic signature” (or “e-signature”) and a signature that is done physically by hand but witnessed electronically.  In this article, we are talking about the latter and we can assume that, at least for the time being, most of the rules relating to witnessing still require physically putting pen to paper.  The recent changes really just mean that the witness no longer has to be in the same room as the executing party.  

By way of legislative order shortly after the onset of the pandemic, the Manitoba government began allowing for temporary remote witnessing.  The key areas of law affected were:

1. Oaths, affirmations and statutory declarations (i.e. evidence)
2. Wills, Powers of Attorney and Health Care Directives (including Appointments of Health Care Proxy)
3. Real Property (Land Titles), including instruments relating to conveyancing
4. Consents and releases under The Homesteads Act
5. Manitoba regulators were, like other authorities, understandably unsure what the new world of video witnessing would look like.  It was for this reason that the new rules were initially made temporary.  Nobody knew how long the pandemic would last or how successful these measures would be.

To the relief of many, the temporary measures proved successful enough for the Manitoba government to enact permanent laws dealing with remote witnessing.  These were brought into effect in the fall of 2021.  

So what does this mean for businesses, business people and the general public?

1. If you have a printer, a suitable app with internet or data connectivity and the right lawyer, you can now sign many documents from just about anywhere.
2. Your lawyer will need to take specific steps to verify your identity and to ensure that you’re signing the same documents that were sent to you prior to your video meeting (email being the most common practice).
3. As long as you can be clearly seen and heard during the video meeting and your lawyer is assured that you have the necessary capacity and are signing freely and voluntarily, your meeting can be completed in an efficient manner that can also save you hassles such as travel and parking.
4. After signing, all you need to do is get the original documents to your lawyer to complete the process (usually by courier service).

• For those who fancy a bit of light bedtime reading, the new permanent laws are in the form of The Remote Witnessing and Commissioning Act (Various Acts Amended), SM 2020, c 25 as well as new Remote Witnessing/Commissioning Regulations to the following statutes:
  • The Manitoba Evidence Act C.C.S.M. c. E150 (Regulation 78/2021)
• The Homesteads Act C.C.S.M. c. H80 (Regulation 79/2021)
• The Powers of Attorney Act C.C.S.M. c. P97 (Regulation 80/2021)
• The Wills Act C.C.S.M. c. W150 (Regulation 81/2021)
• The Health Care Directives Act C.C.S.M. c. H27 (Regulation 82/2021)
• The Real Property Act C.C.S.M. c. R30 (Regulation 83/2021)

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