Guide for newly appointed commissioners for taking affidavits in Ontario
Learn about your roles and responsibilities when taking affidavits and administering oaths, affirmations or declarations.
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A person who is appointed as a commissioner under the Commissioners for Taking Affidavits Act may administer oaths and take affidavits, declarations and affirmations. They can do this where permitted or required by law, and subject to any limitations specified in their appointment certificate.
An affidavit is a written statement confirmed to be true by oath or affirmation, often used as evidence in court. An oath, declaration or affirmation is a solemn pledge with legal consequences that can be made before a notary or commissioner.
This guide is for someone who has been appointed as a commissioner for taking affidavits in Ontario. This guide outlines your new powers and responsibilities. Please read this guide carefully and review the Commissioners for Taking Affidavits Act and regulation 431/20, Administering Oath or Declaration Remotely, before you do any work as a commissioner.
This guide is not legal advice. 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.
Limitations on your appointment must be indicated through a stamp approved on behalf of the Attorney General. An imprint of the stamp must be affixed under your signature on every document that you sign in-person as a commissioner for taking affidavits.
Documents commissioned remotely must include either an imprint of the commissioner’s stamp or must set out the information contained in the stamp. You can learn more information about remote commissioning below.
The approved wording of your stamp is located on the Instructions and Notice of Approval document that was sent to you. You may not add to or change your stamp in any handwritten way.
You must obtain a new stamp after every renewal of your commission to reflect the new expiry date. To request changes to your stamp, contact the Legal Appointments Office.
Changes to your appointment
During your commission, if you making any changes to employment, your address or the name of the business, you must report it to the Legal Appointments Office. In some cases, such changes will require a change to your stamp.
As a commissioner, you are not authorized to act or present yourself as a lawyer or paralegal or provide legal advice. If a declarant or deponent (the person taking the oath or making the affirmation) asks for legal advice related to the oath or declaration they are about to make or sign, you must decline and recommend that they independently consult a lawyer or paralegal.
Expiry and renewal
Your appointment is for three years and must be renewed at the end of that period. To renew, please notify the Legal Appointments Office of the Ministry of the Attorney General at least three months before your present commission expires. A new application form is not needed but you must pay the renewal fee. You must also advise the office if any information has changed since the original appointment was granted.
You cannot use the authority of a commissioner after the date noted on your Instructions and Notice of Approval and on your stamp expires.
Certifying true copies
The Commissioners for Taking Affidavits Act does not itself authorize commissioners to certify true copies of documents. However, other legal documents may give this authority onto commissioners. Commissioners who plan to certify true copies should speak with a lawyer to ensure that they have the legal authority to perform this function.
The responsibilities of a commissioner
Section 9 of the Commissioners for Taking Affidavits Act outlines the following responsibilities of a commissioner:
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
(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.”
These duties must be followed. If you fail to follow these duties or act outside the limits of your appointment, it 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 taking affidavits or declarations incorrectly. 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:
- sign a jurat or declaration without satisfying themselves of the genuineness of the signature of the deponent or declarant
- fail to administer the oath or declaration in the manner required by law before signing the jurat or declaration
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:
- the writing was not sworn or declared correctly
- the person knows that they have no authority to administer the oath or declaration.
The Attorney General may revoke the appointment of any commissioner at any time.
Your appointment may be revoked if you break the above laws or fail to follow 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).
It may be helpful to review 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, communication supports may include:
- plain language
- sign language
- other supports that facilitate effective communications
Accessible formats may include, but are not limited to:
- large print
- recorded audio and electronic formats
- other formats usable by persons with disabilities
Other examples of providing accessible services could include using:
- an interpreter
- assistive technologies, such as dictation services or screen-readers
- leveraging audio-visual platforms that offer closed captioning functionality
Taking an affidavit or written declaration in person
Note: Commissioners cannot take their own affidavits or declarations.
Verify the signature
It is your obligation to make sure your deponent’s signature is genuine. The affidavit or declaration must be signed before you and the deponent/declarant must provide proof of identity.
Administer the declaration, oath or affirmation
“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 Evidence Act requires the commissioner to take oaths and affirmations in a manner that the deponent 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?”
Example of oath
“Do you swear that the contents of this affidavit as subscribed by you are true, so help you God?”
Example of affirmation
“Do you solemnly affirm and declare that the contents of this affidavit as subscribed by you are true?”
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?”
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 can be seen in the below excerpt from a legal form:
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 involves the same steps as commissioning an oath in person, with a few additional rules.
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 Regulation 431/20 Administering Oath or Declaration Remotely are met.
Note: There is nothing in the Commissioners for Taking Affidavits Act or 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 first confirm with you that the receiving organization is able to accept it. If the receiving organization is unsure or unable to accept a remotely commissioned document, you should suggest that your client seek in-person commissioning services.
An affidavit sworn outside Ontario before a commissioner in Ontario has the same effect as if the affidavit had been sworn in Ontario, according to subsection 45(2) of the Evidence Act. There is also no requirement that a commissioner be located in Ontario at the time of signing.
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:
- the use of an interpreter
- assistive technologies such as dictation services or screen-readers
- using audio-visual platforms that offer closed captioning functionality
When choosing an electronic method of communication, you may wish to consider:
- the security of the platform (can it be accessed by parties outside of the commissioner and the deponent/declarant)
- whether the deponent/declarant can successfully access the platform
- the reliability of the platform or service to provide real time video and audio services
You must maintain a record of every act of remote commissioning that you perform.
Examples of record keeping could include:
- maintaining a logbook of all remote acts of commissioning performed
- retaining a copy of the final remotely commissioned document
You might also consider adapting the existing records retention and management practices used for in-person commissioning services for remote commissioning services.
Completing the Jurat
When conducting remote commissioning, a modified version of the jurat must be completed and must indicate:
- that the oath or declaration was administered in accordance with regulation 431/20, Administering Oath or Declaration Remotely
- the location of the commissioner and the stated location of the deponent or declarant at the time that the oath or declaration was administered
An example of a modified jurat for a remotely commissioned document can be seen below in this excerpt from a legal form:
Sworn (or Affirmed or Declared) remotely by (client’s name) stated as being located in 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 must 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.
If you choose to offer remote commissioning services, you must take reasonable precautions 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 making sure 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 whether they understand what they are signing.
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.
The various rules of court may contain specific additional requirements for taking affidavits that will be used in proceedings to which those rules apply. Examples of rules of court include:
- Rules of Civil Procedure
- Criminal Proceedings Rules for the Superior Court of Justice (Ontario) (Note: These rules can be amended by Practice Directions.)
- Criminal Rules of the Ontario Court of Justice
Examples of situations that may involve special requirements are:
- when an exhibit is referred to in an affidavit
- when an affidavit is made by two or more deponents
- when an affidavit is made for a corporation or partnership
- when an affidavit is made by a person who is blind, cannot read or does not understand the language used in the affidavit
- when changes to an affidavit are needed
It is your responsibility to determine what your obligations are in any specific case, including providing accessible services. If you are not sure how the rules apply to your case, you should consult a lawyer.
Exhibits attached to affidavits
Rules of Civil Procedure, 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 on the first page of the exhibit or on a separate cover page inserted before the first page of the exhibit:
“This is exhibit ‘A’ referred to in the affidavit of (name of the deponent) sworn/affirmed before me this (date) day of (month), (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)
Under these rules, where an affidavit is made by two or more deponents, you must create 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)
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 these rules require an affidavit to be made by a party and the 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)
If it appears to you that the deponent is illiterate or blind, you must certify in the jurat that the affidavit was read in your presence to the deponent, that the deponent appeared to understand it, and that the deponent signed the affidavit or placed their mark on it in your presence.
Affidavit by a person who does not understand the language
Rules of Civil Procedure, Rule 4.06(8)
If it appears to you that the deponent does not understand the language used in the affidavit, you must certify in the jurat that the affidavit was interpreted to the deponent in your presence by a named interpreter who took an oath or made an affirmation before you to interpret the affidavit correctly.
Alterations to an affidavit
Rules of Civil Procedure, Rule 4.06(9)
Under these rules, you must initial any alteration or change made in an affidavit.
Unless initialed, the affidavit cannot be used without leave of the presiding judge or officer. 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/affirmations other than for affidavits. As above, it is your responsibility to ask the deponent what kind of oath or affirmation would bind their conscience.
- To a witness in an examination for discovery -- “Do you swear / solemnly affirm that the evidence that you are about to give shall be the truth, the whole truth and nothing but the truth?”
- To an interpreter -- “Do you swear / solemnly affirm that you understand the (name of interpreted language) language and the English language, that you shall well and truly interpret the oath / affirmation to the deponent and all other matters and things as shall be required of you, to the best of your skill and understanding?”
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