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Ministry of the Attorney General

Guide for Newly Appointed Commissioners for Taking Affidavits

Ministry of the Attorney General

Congratulations on your appointment as a commissioner for taking affidavits! This guide outlines your new powers and responsibilities.

Please read this guide carefully and review the Commissioners for Taking Affidavits Act and Ontario Regulation 431/20, Administering Oath or Declaration Remotely, before you do any work as a commissioner.

General

The Ministry of the Attorney General does not provide legal advice or opinions to commissioners for taking affidavits. If you have a question about how this information applies to your circumstances, please consult a lawyer.

Subject to any limitations specified in your Appointment Certificate, as a commissioner for taking affidavits you may administer oaths and take affidavits, declarations and affirmations where permitted or required by law.

Inquiries

For more information, please visit our website.

If you have a question about the appointment of commissioners for taking affidavits, please contact:

Ministry of the Attorney General
Legal Appointments Office
c/o Ministry of Government Services
77 Wellesley St W, BOX 720
Toronto ON M7A 1N3
Phone: (416) 326-4064
Fax: (416) 326-4065
E-mail: appointments@ontario.ca

Responsibilities

Section 9 of the Commissioners for Taking Affidavits Act provides:

Administration of oath, declaration

In person

9 (1) Every oath and declaration shall be taken by the deponent or declarant in the physical presence of the commissioner, notary public or other person administering the oath or declaration. 2020, c. 7, Sched. 4, s. 6.

Not in person

(2) Despite subsection (1), if the regulations made under this Act so provide and the conditions set out in the regulations are met, an oath or declaration may be taken by a deponent or declarant in accordance with the regulations without being in the physical presence of a commissioner, notary public or other person administering the oath or declaration. 2020, c. 7, Sched. 4, s. 6.

Duty of commissioner, etc.

(3) A commissioner, notary public or other person administering an oath or declaration shall satisfy himself or herself of the genuineness of the signature of the deponent or declarant and shall administer the oath or declaration in the manner required by law before signing the jurat or declaration.

The duties identified in section 9 must be followed. Failure to adhere to section 9 or to the limits of your appointment may threaten the legal validity of the declaration or affidavit that you commission.

As a commissioner, you may be called into court to establish that the oath, affirmation or declaration was administered properly. You may also be personally liable for improperly taking affidavits or declarations. Section 10 of the Commissioners for Taking Affidavits Act makes it an offence, punishable by a fine of up to $2000, for a commissioner to:

Additionally, section 138 of the Criminal Code of Canada makes it an indictable offence, punishable by up to two years’ imprisonment, to sign a writing that purports to be an affidavit or statutory declaration and to have been sworn or declared before him or her when:

Your commission may be revoked if you break these laws or fail to comply with your duties under the Commissioners for Taking Affidavits Act.

Commissioners should ensure that services provided both in-person and remotely are accessible for people with disabilities in a manner that is consistent with the Ontario Human Rights Code and the Accessibility for Ontarians with Disabilities Act, 2005 (AODA).

Consider reviewing the Integrated Accessibility Standards Regulation (IASR) under the AODA for information on accessible formats and communication supports. This may be particularly relevant for commissioners who choose to provide remote commissioning services. As set out in the IASR, communications supports may include but are not limited to, captioning, alternative and augmentative communication supports, plain language, sign language and other supports that facilitate effective communications. Accessible formats may include, but are not limited to, large print, recorded audio and electronic formats, braille and other formats usable by persons with disabilities.

Other examples of providing accessible services could include the use of an interpreter, assistive technologies such as dictation services or screen-readers, and leveraging audio-visual platforms that offer closed captioning functionality.

Steps for Taking Written Declarations and Affidavits

Note: Commissioners cannot take their own affidavits or declarations.

1. Verify the Signature

It is your obligation to satisfy yourself of the genuineness of the signature. The affidavit or declaration must therefore be signed before you and the deponent/declarant must provide proof of identity.

2. Administer the Declaration, Oath or Affirmation

Declarations

The Ontario Evidence Act and the Canada Evidence Act both prescribe the following form for solemn declarations (italicized words added):

“I, (name of the declarant) , solemnly declare that (state the fact or facts declared to), and I 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.

Declared before me (signature of commissioner) at (city or town) this (date) day of (month) , 20 (year) .”

Oaths and Affirmations

The Ontario Evidence Act requires the commissioner to take oaths and affirmations in a manner that the deponent (the person taking the oath or making the affirmation) declares to be binding on the deponent’s conscience. Examples could include making an oath, with or without a religious text or icon, or affirming solemnly.

There is no prescribed wording for oaths in the way that there are for declarations. Common formulations of oaths and affirmations are listed below. After administering the affidavit, you may also wish to confirm with the witness, “Are you bound by this oath/affirmation?”

  1. Oath

    “Do you swear that the contents of this affidavit as subscribed by you are true, so help you God?”

  2. Affirmation

    “Do you solemnly affirm and declare that the contents of this affidavit as subscribed by you are true?”

  3. Where the deponent requires an interpreter

    “Do you swear / solemnly affirm and declare that you understand the (name of interpreted language) language and the English language, that you shall well and truly interpret the oath to the deponent and all other matters and things as shall be required of you, to the best of your skill and understanding, so help you God?”

3. Complete the Jurat

The jurat is the part of the document where you certify when and where you took the affidavit or declaration. It is usually written at the foot of the document. A common form of jurat:

Sworn (or Affirmed or Declared) before me at the (City, Town, etc.) of ..................... in the (County, Regional Municipality, etc.) of ....................., on (date).

………………………………………………………

Commissioner for Taking Affidavits

(AN IMPRINT OF YOUR STAMP MUST BE PLACED HERE)

Signing the jurat is the final step in the process. The affidavit or declaration is now complete.

Administering an Oath or Declaration Remotely

Section 9 of the Commissioners for Taking Affidavits Act specifies that an oath and declaration shall be taken by the deponent or declarant in the physical presence of a commissioner and that an oath or declaration may be taken without being in the physical presence of a commissioner if and only if the conditions set out in Ontario Regulation 431/20 Administering Oath or Declaration Remotely are met.

IMPORTANT: There is nothing in the Commissioners for Taking Affidavits Act or Ontario Regulation 431/20, Administering Oath or Declaration Remotely, that obliges a party or receiving organization to accept a document that has been commissioned remotely. Before entering a remote commissioning transaction, clients should be urged to verify that the receiving organization is able to accept it. If the receiving organization is unsure or unable to accept a remotely commissioned document, clients should be encouraged to seek in-person commissioning services.

Subsection 45(2) of the Evidence Act provides that an affidavit sworn outside Ontario before a commissioner for taking affidavits in Ontario has the same effect as if the affidavit had been sworn in Ontario. Accordingly, there is no requirement that a commissioner be located in Ontario at the time of signing.

Administering an oath or declaration remotely would involve the same steps set out above but with some additional rules.

Electronic Communication:

The oath or declaration must be administered by an electronic method of communication in which the commissioner and deponent or declarant can see, hear and communicate with each other in real time throughout the entire transaction.

For clients that require disability-related accommodations, you may wish to consider using platforms that support:

In selecting an electronic method of communication, you could consider:

Record Keeping:

You must maintain a record of every act of remote commissioning that you perform.

Completing the Jurat

When conducting remote commissioning, a modified version of the jurat must be completed and must indicate:

An example of a modified jurat for a remotely commissioned document, based on the common form as seen above:

Sworn (or Affirmed or Declared) remotely by (client’s name) stated as being located inat the (City, Town, etc.) of …......... in the (County, Regional Municipality, etc.) of …........., before me at the (City, Town, etc.) of ..................... in the (County, Regional Municipality, etc.) of ....................., on (date), in accordance with O. Reg 431/20, Administering Oath or Declaration Remotely. ………………………………………………………

Commissioner for Taking Affidavits

(AN IMPRINT OF YOUR STAMP, OR THE INFORMATION CONTAINED THEREIN, MAY BE PLACED HERE.

If the stamp imprint or information is not placed here it must appear in full elsewhere on the commissioned document.)

The same information that appears on your physical stamp must also appear on the document being commissioned remotely.

Precautions:

If you choose to offer remote commissioning services, it is expected that you take reasonable precautions in the execution of your duties as a commissioner to minimize the risks associated with remote commissioning and work with the deponent or declarant to ensure they understand what is being signed.

This does not mean providing legal advice but could include ensuring that the deponent understands what they are signing. As an example, if the affidavit is in a language unknown to the deponent, you might consider inquiring further about the deponent’s understanding.

Taking reasonable precautions in the execution of your duties as a commissioner could also extend to how you verify the deponent’s identity, how you satisfy yourself of the genuineness of the deponent’s signature, the steps you take to administer an oath or declaration for someone who is blind, or the steps you take to administer an affidavit in any of the special cases set out below.

Special Cases: Additional Rules for Taking Affidavits

The various rules of court may contain specific additional requirements for taking affidavits that will be used in proceedings to which those rules apply. These rules are available online through the Ontario Courts website.

For your information, certain commonly used rules are highlighted below. However, it is your responsibility to determine what your obligations are in any specific instance, including obligations to provide accessible services. If you are uncertain about how the rules may apply in your case, you should consult a lawyer.

Exhibits Attached To Affidavits

Rules of Civil Procedure, R. 4.06(3)

Criminal Proceedings Rules, R. 4.06(3)

Rules of the Ontario Court of Justice in Criminal Proceedings, R.4.06(3)

Under these rules, an exhibit that is referred to in an affidavit shall be marked as such by the person taking the affidavit.

Before marking the exhibit, it is useful to confirm with the deponent: “Is this the document referred to in your affidavit?”

One common way of marking the exhibit is to write the following above your signature:

“This is exhibit ‘A’ referred to in the affidavit of (name of the deponent) sworn before me this (date) day of (month) , 20 (year) .”

Many commissioners will also initial each page of the exhibit to illustrate that no pages were added after the fact.

Affidavit by Two or More Deponents

Rules of Civil Procedure, Rule 4.06(4)

Criminal Proceedings Rules, R. 4.06(4)

Rules of the Ontario Court of Justice in Criminal Proceedings, R.4.06(4)

Under these rules, where an affidavit is made by two or more deponents, there shall be a separate jurat for each deponent, unless all the deponents make the affidavit before the same person at the same time, in which case one jurat containing the words “Sworn (affirmed) by the above-named deponents” may be used.

Affidavit for a Corporation

Rules of Civil Procedure, Rule 4.06(5)

Criminal Proceedings Rules, R. 4.06(5)

Rules of the Ontario Court of Justice in Criminal Proceedings, R.4.06(5)

Where these rules require an affidavit to be made by a party and the party is a corporation, the affidavit may be made for the corporation by an officer, director or employee of the corporation.

Affidavit for a Partnership

Rules of Civil Procedure, Rule 4.06(6)

Where rules require an affidavit to be made by a party and a party is a partnership, the affidavit may be made for the partnership, by a member or employee of the partnership.

Affidavit By A Person Who Is Blind Or Cannot Read

Rules of Civil Procedure, Rule 4.06(7)

Where it appears to a person taking an affidavit that the person is illiterate or blind, the person shall certify in the jurat that the affidavit was read in his/her presence to the deponent, and that the deponent appeared to understand it, and that the deponent signed the affidavit or placed his or her mark on it in the presence of the person taking the affidavit.

Affidavit By A Person Who Does Not Understand The Language

Rules of Civil Procedure, Rule 4.06(8)

Where it appears to a person taking an affidavit that the deponent does not understand the language used in the affidavit, the person shall certify in the jurat that the affidavit was interpreted to the deponent in the person’s presence by a named interpreter who took an oath or made an affirmation before him or her to interpret the affidavit correctly.

Alterations To An Affidavit

Rules of Civil Procedure, Rule 4.06(9)

Criminal Proceedings Rules, R. 4.06(6)

Rules of the Ontario Court of Justice in Criminal Proceedings, R.4.06(6)

Under these rules, any alteration in an affidavit shall be initialed by the person taking the affidavit and, unless so initialed, the affidavit shall not be used without leave of the presiding judge or officer.

In the below example, a commissioner demarcates the changes by placing his initials (A.B.) next to each change and a check mark at the beginning and end of each change.

I served the affidavit on the fifth day of June, 2011.

Some commissioners will ask the deponent to also initial any changes.

Oaths and Affirmations Not Related To Affidavits

Below are examples of oaths and affirmations that are commonly used when taking oaths other than for affidavits. As above, it is your responsibility to inquire with the deponent as to what kind of oath or affirmation will bind his or her conscience.