On March 20, 2020, and March 27, 2020, Notices issued by the Court of Appeal, the Supreme Court of British Columbia and the Provincial Court outlined the process for virtual commissioning of affidavits. Questions have been raised whether this same process can be used to commission affidavits or take solemn declarations for purposes outside of filing at the courts.
The Law Society of British Columbia (“LSBC”) has since clarified that, where lawyers reasonably determine that circumstances require virtual commissioning of an affidavit and they follow the procedure outlined in the Notices, the LSBC will consider the requirement set out in Appendix A 1(a) of the Code of Professional Conduct, that the deponent be physically present before the lawyer, to be met.
Other entities that receive affidavits or solemn declarations have to consider whether they have the authority to accept affidavits or solemn declarations that are commissioned using video technology. Lawyers will, therefore, need to determine whether the particular body for whom the affidavit or solemn declaration is prepared will accept such evidence sworn or taken using video technology, and under what circumstances. The LSBC has been actively engaged in encouraging other entities to adopt the same procedure as the courts.