Remote Signing Protocol (ON)

Remote Signing Protocol (ON)

Requirements

  1. Video Conferencing Capability

    1. Lawyers are required to use a video conferencing (VC)1 capability that is easily accessible to clients. Some clients may not have cameras on their computers, so please ensure the VC is available on mobile too.
    2. LDD recommends [FILL] as a VC for lawyers. Make sure that the video and sound quality of the VC are good and that all parties are comfortable with using it.

  2. Document Scanning and Transmission

    1. Clients may require access to a document scanner to upload documents via mobile and transmit them to the lawyer. Lawyers should also ensure that documents can be couriered to clients if necessary. 
    2. Adobe Scan is a document scanning app for mobile and is available for download from the Apple App Store for IOS devices and the Google Play Store for Android devices. Documents scanned using Adobe Scan will be saved by Adobe as customer data2. 
    3. Please note that LDD makes no representation or warranty as to Adobe's assurance of data storage or retention. Lawyers should consider recommending that the client delete all copies of the scanned documentation after the lawyer confirms they have a copy.

  3. Virtual Commissioning

    1. Although legislation exists to provide for virtual commissioning, regulations are not in place to define the applicable requirements related thereto. The closing protocol discussed in this document relies on the LSO’s March 16 Virtual Commissioning bulletin attached as Schedule A.

  4. Electronic Signatures

    1. Item 5 discusses clients affixing wet signatures to paper documents. This may evolve to electronic signatures once this type of functionality can be factored into the procedure below.

  5. Virtual Closing Procedure

    1. Establish the time for the video conference with client at least 48 hours before closing to allow for time to courier documents if necessary.
    2. Client to provide scanned copies of identification before scheduled video conference for lawyer’s review.
    3. Send electronic copies of documents for review with and/or signed by client in advance of the video conferencing meeting.
    4. LDD will allow subscribers to post closing documents to client portal and client will access portal and answer two authentication questions to gain access to documents in portal.
    5. Client downloads and prints paper copies of documents.
    6. Lawyer reviews documents with client during video conference and witnesses/commissions wet signature of documents by client (see attached Schedule B for Video Conferencing check list).
    7. Client scans signed documents and emails them to lawyer and/or couriers signed documents to lawyer’s office.
    8. Lawyer affixes wet signature to applicable scanned and/or original copies of documents from client to complete witnessing/commissioning function.\
1 This video service is owned and operated by an independent, third-party service provider (the “Service”) and is provided “As Is”. LDD disclaims all warranties of any kind, express or implied, and makes no representations whatsoever as to your use of the Service. You are solely responsible for your and each end user’s use of the Service and shall abide by and ensure compliance with all laws in connection with your and each end user’s use of the Service including, but not limited to, laws related to recording (if and when available), intellectual property, privacy and export control.

2 Adobe: Where does customer data reside? Customer data is stored in Amazon S3 and Adobe designates which physical region individual customers’ data and servers will be located. Data replication for Amazon S3 data objects is done within the regional cluster where the data is stored and is not replicated to data center clusters in other regions. Adobe operates Creative Cloud out of three regions: United States, EU, and Asia Pacific. Example: By default, all data from Creative Cloud customers in the EU will have their cloud data stored in the AWS data center in the EU and that data will not be transferred to data centers outside the EU.


Schedule A - LSO March 16 Bulletin on Virtual Commissioning

Commissioning is governed by the Commissioners for Taking Affidavits Act and is not regulated by the Law Society. Although the law is evolving in this area, the best practice for commissioning documents remains for the lawyer or paralegal who is acting as a commissioner to be in the physical presence of the deponent to commission the document(s). For more information, please review the Law Society’s Virtual Commissioning resource.

However, as a result of COVID-19, until further notice:
  1. The Law Society will interpret the requirement in section 9 of the Commissioners for Taking Affidavits Act that “every oath and declaration shall be taken by the deponent in the presence of the commissioner or notary public” as not requiring the lawyer or paralegal to be in the physical presence of the client. 
  2. Rather, alternative means of commissioning such as commissioning via video conference will be permitted. 
  3. If lawyers and paralegals choose to use virtual commissioning, they should attempt to manage some of the risks associated with this practice as outlined below.


Managing the Risk of Virtual Commissioning

If a lawyer or paralegal chooses to use virtual commissioning, the lawyer or paralegal should be alert to the risks of doing so, which may include the following issues:
  1. Fraud 
  2. Identity theft
  3. Undue influence
  4. Duress Capacity
  5. Client left without copies of the documents executed remotely
  6. Client feels that they did not have an adequate opportunity to ask questions or request clarifying information about the documents they are executing. 
To manage some of the risks:
  1. Consider whether there are red flags of fraud in the matter. To review these red flags, see the Federation of Law Societies’ Risk Advisories for the Legal Profession resource. 
  2. Assess whether there is a risk that the client may be subject to undue influence or duress. If there is such a risk, consider if you are able to assist the client at this time without meeting in person. 
  3. Determine how to provide the client with copies of the document executed remotely. 
  4. Confirm your client’s understanding about the documents they are executing and provide adequate opportunity for them to ask questions during the video conference. 
  5. Be alert to the fact that persons may attempt to use the current circumstances and resulting confusion as an opportunity to commit fraud or other illegal acts. Where lawyers and paralegals choose to use virtual commissioning, they must be particularly alert to these red flags in order to ensure that they are not assisting, or being reckless in respect of any illegal activity.
Last updated: March 16

Schedule B Video Conference Checklist

DATE AND TIME OF MEETING:                                                                                         
MEDIUM FOR MEETING:                                                                                                      

FILE NUMBER:                                                                                                                      

START OF MEETING

o  Test video and sound quality.

o  Have the client scan the entire room to ensure no one else is in the room.

      Any other parties present, and reason for presence:                                                                                                                                                            

o  Have all parties introduce/identify themselves

      Clients present:                                                                                                                            

 Ask of clients: 

            o not to mute their audio at any time during the call.
            o hold to camera ID that was previously provided and confirm that it is the client.

DOCUMENTS 
      
o  Confirm the client has received and printed the following documents: [INCLUDE LIST OF DOCUMENTS SENT TO CLIENTS]
      
o  Review and explain each document.
      
o  Confirm client’s understanding of the documents and provide sufficient opportunity for client to ask questions.
      
o  Have client angle camera, if required, when signing so signing of documents can be witnessed.
      
o  Have client hold documents to camera after signing to ensure signed correctly.

After all clients have signed any affidavits, ask them (and obtain an affirmative response from all signatories):

            o  If sworn: “Do you swear that the contents of this affidavit as subscribed by you are true, so help you God?” or
            o  If affirmed: “Do you solemnly affirm and declare that the contents of this affidavit s       subscribed by you are true?” 
           o  After all clients have signed any statutory declaration, ask them (and obtain an   affirmative response from all signatories):
              “Do you make this solemn declaration conscientiously believing it to be true, and knowing that it is of the same force and effect as if made under oath?”
            o  Provide the client with a unique phrase or code to write in a particular place on each  document.

      Unique phrase / code given to clients:                                              

END OF MEETING
Confirm how client will be returning documents with wet ink signature:

o Scan

o Courier

o Mail

o Other:                                              


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