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Second
Session, 50th General Assembly 1 Charles III, 2023 |
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AN ACT TO AMEND
VARIOUS ACTS OF THE PROVINCE RESPECTING THE ALTERNATE WITNESSING OF DOCUMENTS |
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Received and Read the First Time................................................................ |
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Second
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Committee..................................................................................................... |
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Third
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Royal Assent................................................................................................. |
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HONOURABLE JOHN HOGAN, KC Minister of Justice and Public Safety and Attorney General |
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Ordered to be printed by
the Honourable House of Assembly |
EXPLANATORY NOTES This Bill would amend the Commissioners for Oaths Act, the Notaries Public Act, the Registration of Deeds Act, 2009 and the Wills Act to ˇ allow lawyers in good standing with the Law Society of Newfoundland and Labrador to witness documents identified in those Acts using audio-visual technology; ˇ authorize the Lieutenant-Governor in Council to make regulations prescribing the requirement for attendance through the use of audio-visual technology; and ˇ incorporate gender-neutral language. A BILL AN ACT TO AMEND VARIOUS ACTS OF THE PROVINCE RESPECTING THE ALTERNATE WITNESSING OF DOCUMENTS BY LAWYERS Analysis 1. Short title PART
I 2.
S.1.1 Added 3.
S.2 Amdt. 4.
S.3 Amdt. 5. S.4 R&S Barristers 6.
S.5 Amdt. 7.
S.6 Amdt. 8.
S.7 Amdt. 9.
S.7.1 Amdt. 10.
S.8 Amdt. 11.
S.9 Amdt. 12.
S.10 Amdt. 13.
S.11 Amdt. 14.
S.13 Amdt. 15.
S.14 Amdt. 16.
S.15 Amdt. 17.
S.16 Added PART
II 18. S.1.1 Added Definitions 19.
S.2 Amdt. 20.
S.3 Amdt. 21.
S.4 Amdt. 22.
S.5 Amdt. 23. S.6 R&S Powers 24. S.8 R&S Oaths, affirmations, etc. 25.
S.9 Amdt. 26.
S.10 Amdt. 27.
S.11 Added PART
III 28.
S.2 Amdt. 29.
S.5 Amdt. 30.
S.6 R&S 31.
S.7 Amdt. 32.
S.9 Amdt. 33. S.15 R&S Documents executed in the province 34.
S.16 Amdt. 35.
S.17 Amdt. 36.
S.19 Amdt. 37.
S.20 Amdt. 38.
S.30 Amdt. 39.
S.32 Amdt. 40.
S.38.1 Added PART
IV 41.
S.1.1 Added 42.
S.2 Amdt. 43.
S.7 Amdt. 44.
S.9 Amdt. 45.
S.11 Amdt. 46.
S.14 Amdt. 47.
S.16 Amdt. 48.
S.17 Amdt. 49.
S.18 Amdt. 50. S.19 Amdt. Gifts to sibling 51.
S.24 Amdt. 52.
S.35 Amdt. 53.
S.36 Amdt. 54.
S.37 Amdt. 55.
S.38 Amdt. 56.
S.39 Amdt. 57.
S.40 Amdt. 58.
S.41 Amdt. 59.
S.42 Amdt. 60.
Commencement Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows: Short title 1. This Act may be cited as the Alternate Witnessing of Documents Amendment Act. PART I RSNL1990 cC-25 2. The Commissioners for Oaths Act is amended by adding immediately after section 1 the following: Definitions 1.1 In this Act, (a) "audio-visual technology" means technology which allows a person signing a document and a
person witnessing the signing of the document who are not in the physical
presence of one another to see, hear and communicate with each other at all
times; (b) "barrister" means lawyer; (c) "lawyer" means a member in good standing of the Law Society of
Newfoundland and Labrador; and (d) "minister" means the minister appointed under the Executive Council Act to administer this Act. 3. (1) Subsection 2(1) of the Act is amended by deleting the words "Minister of Justice" and substituting the word "minister". (2) Subsection 2(2) of the Act is amended by deleting the words "his or her" and substituting the words "the person's". 4. (1) Subsection 3(1) of the Act is amended by deleting the words "Minister of Justice" and substituting the word "minister". (2) Subsection 3(2) of the Act is amended by deleting the words "his or her" and substituting the words "the person's". 5. Section 4 of the Act is repealed and the following substituted: Barristers 4. (1) A barrister while entitled to practise in the province is a
commissioner for oaths and may exercise, either within or outside of the
province, the powers conferred by this Act and on an affidavit, declaration,
affirmation or certificate made before the barrister or given by the barrister
under those powers the barrister shall write or stamp below the barrister's
signature the word "Barrister". (2) For the purposes of
subsection (1), the words "made before the barrister" include
attendance through the use of audio-visual technology provided that the
barrister complies with the requirements prescribed in the regulations. 6. Section 5 of the Act is amended by (a) deleting the words "he or she" and substituting the words "the member"; (b) deleting the words "his or her" and substituting the words "the member's"; and (c) deleting the words "him or her" and substituting the words "the member". 7. (1) Subsection 6(1) of the Act is amended by (a) deleting the words "his or her" and substituting the words "the mayor's or chairperson's"; and (b) deleting the words "him or her" and substituting the words "the mayor or chairperson". (2) Subsection 6(2) of the Act is amended by deleting the reference "Municipalities Act" and substituting the reference "Municipalities Act, 1999". 8. Subsection 7(2) of the Act is amended by deleting the words "his or her" and substituting the words "the person's". 9. (1) Subsection 7.1(1) of the Act is amended by deleting the words "Minister of Justice" wherever they appear and substituting the word "minister". (2) Subsection 7.1(2) of the Act is amended by deleting the words "his or her" and substituting the words "the person's". 10. Subsection 8(2) of the Act is amended by deleting the words "Minister of Justice" and substituting the word "minister". 11. Section 9 of the Act is amended by deleting the words "Minister of Justice" and substituting the word "minister". 12. Section 10 of the Act is amended by deleting the words "Minister of Justice" wherever they appear and substituting the word "minister". 13. Subsection 11(1) of the Act is amended by deleting the words "his or her" and substituting the words "the commissioner's". 14. Subsection 13(1) of the Act is amended by deleting the words "Minister of Justice" wherever they appear and substituting the word "minister". 15. Section 14 of the Act is amended by deleting the words "him or her" and substituting the words "the commissioner". 16. Subsection 15(2) of the Act is amended by deleting the words "holds himself or herself out as" and substituting the words "represents to be". 17. The Act is amended by adding immediately after section 15 the following: Regulations 16. (1) The Lieutenant-Governor in Council may make regulations (a) prescribing the requirements for attendance through the use of audio-visual technology; (b) defining a word or
expression used but not defined in this Act; and (c) generally, to give
effect to the purpose of this Act. (2) The Lieutenant-Governor in Council may in addition to or instead of regulations made under paragraph (1)(a) adopt by reference and constitute as regulations the whole or part of provisions of the Rules of the Law Society of Newfoundland and Labrador, with or without modification, and including any amendments to the Rules of the Law Society of Newfoundland and Labrador. PART II RSNL1990 cN-5 18. The Notaries Public Act is amended by adding immediately after section 1 the following: Definitions 1.1 In this Act, (a) "audio-visual technology" means technology which allows a person signing a document and a
person witnessing the signing of the document who are not in the physical
presence of one another to see, hear and communicate with each other at all
times; (b) "lawyer" means a member in good standing of the Law Society of
Newfoundland and Labrador; and (c) "minister" means the minister appointed under the Executive Council Act to administer this Act. 19. Section 2 of the Act is amended by (a) deleting the words "Minister of Justice" wherever they appear and substituting the word "minister"; and (b) deleting the words "his or her" wherever they appear and substituting the words "the person's". 20. Section 3 of the Act is amended by (a) deleting the words "his or her" and substituting the word "a"; and (b) deleting the words "Minister of Justice" and substituting the word "minister". 21. Section 4 of the Act is amended by (a) deleting the words "Minister of Justice" wherever they appear and substituting the word "minister"; (b) deleting the words "Trial Division" wherever they appear and substituting the words "Supreme Court"; (c) deleting the number "1" wherever it appears and substituting the word "one"; and (d) deleting the words "his or her" wherever they appear and substituting the words "the notary public's". 22. Section 5 of the Act is amended by (a) deleting the words "Minister of Justice" wherever they appear and substituting the word "minister"; and (b) deleting the words "his or her" wherever they appear and substituting the words "the person's". 23. Section 6 of the Act is repealed and the following substituted: Powers 6. (1) Subject to the Law Society Act, 1999 a notary
public has and may use and exercise power to witness a document brought before
the notary public and demand and receive the fees provided by this Act or
another statute or law. (2) For the purposes of
subsection (1), the words "brought before the notary public" includes
attendance through the use of audio-visual technology provided that the notary
public (a) is a lawyer; and (b) complies with the requirements prescribed in the regulations. 24. Section 8 of the Act is repealed and the following substituted: Oaths, affirmations, etc. 8. (1) A notary public may administer all oaths, affirmations, or
declarations required to be administered, sworn, affirmed, made, taken, or
received under an Act of the Legislature or of the Parliament of Canada or of
the Legislature of another province or by the laws of a foreign country or
state, and to witness the oaths, affirmations or declarations by affixing the
notary public's notarial seal and signing the notary public's name to the
relevant document. (2) For the purposes of
subsection (1), a notary public may witness an oath, affirmation or declaration
through the use of audio-visual technology provided that the notary public (a) is a lawyer; and (b) complies with the requirements prescribed in the regulations. 25. (1) Subsection 9(1) of the Act is amended by deleting the words "provide himself or herself with" with the words "acquire". (2) Subsection 9(2) of the Act is amended by deleting the words "his or her" and substituting the words "the notary public's". 26. Subsection 10(1) of the Act is amended by deleting the words "holds himself or herself out as" and substituting the words "represents to be". 27. The Act is amended by adding immediately after section 10 the following: Regulations 11. (1) The Lieutenant-Governor in Council may make regulations (a) prescribing the requirements for attendance through the use of audio-visual technology; (b) defining a word or
expression used but not defined in this Act; and (c) generally, to give
effect to the purpose of this Act. (2) The Lieutenant-Governor in Council may in addition to or instead of regulations made under subsection (1)(a) adopt by reference and constitute as regulations the whole or part of provisions of the Rules of the Law Society of Newfoundland and Labrador, with or without modification, and including any amendments to the Rules of the Law Society of Newfoundland and Labrador. PART III SNL2009 cR-10.01 as amended 28. (1) Section 2 of the Registration of Deeds Act, 2009 is amended by adding immediately before paragraph (a) the following: (a.01) "audio-visual technology" means technology which allows a person signing a document and a
person witnessing the signing of the document who are not in the physical
presence of one another to see, hear and communicate with each other at all
times; (2) Section 2 of the Act is amended by adding immediately after paragraph (b) the following: (b.1) "lawyer" means a member in good standing of the Law Society of Newfoundland
and Labrador; 29. Section 5 of the Act is amended by deleting the words "his or her" and substituting the words "the registrar's". 30. Section 6 of the Act is repealed and the following substituted: Protection of registrar 6. The registrar or the deputy registrar appointed under
section 5 is not, nor is a person acting under the registrar's or deputy
registrar's authority, personally liable in an action or proceeding for or in
respect of an act or matter done or omitted in good faith in the exercise or
purported exercise of the powers conferred upon the registrar or deputy
registrar or in the performance of the registrar's or deputy registrar's duties
under this Act or a regulation made under this Act, or for costs in connection
with an action or proceeding. 31. Subsection 7(3) of the Act is amended by deleting the words "he or she" and substituting the words "the registrar". 32. Section 9 of the Act is amended by deleting the words "he or she" wherever they appear and substituting the words "the person". 33. Section 15 of the Act is repealed and the following substituted: Documents executed in the province 15. (1) An instrument executed in the province may be proven in the
presence of (a) the registrar; (b) a judge of the
Supreme Court, Court of Appeal or Provincial Court; (c) the deputy registrar
appointed under this Act; (d) a commissioner of
the Supreme Court; (e) a justice of the
peace; (f) the mayor of a city
or town in the province; (g) an officer of the
Royal Newfoundland Constabulary; (h) a member of the
Royal Canadian Mounted Police; (i) a notary public
under the notary public's official seal; or (j) a commissioner for
oaths in and for the province. (2) For the purposes of paragraphs
(1)(i) and (j), "in the presence of" includes attendance through the
use of audio-visual technology provided that (a) the instrument is
executed in the presence of (i) a commissioner for oaths
authorized under section 4 of the Commissioners
for Oaths Act to witness an affidavit, declaration, affirmation or
certificate through the use of audio-visual technology, or (ii) a notary public authorized
under section 6 or section 8 of the Notaries
Public Act to witness a document, oath, affirmation or declaration through
the use of audio-visual technology; and (b) the commissioner for
oaths or notary public (i) is a lawyer, and (ii) complies with the requirements prescribed in the regulations. (3) Where an instrument is witnessed through the use of audio-visual technology in accordance with subsection (2), the instrument shall include the original signatures of the persons signing the instrument and the persons witnessing the instrument before being submitted for registration. 34. (1) Paragraph 16(c) of the Act is amended by deleting the words "his or her" and substituting the words "the notary public's". (2) Paragraph 16(g) of the Act is amended by deleting the words "of Newfoundland and Labrador". 35. Section 17 of the Act is amended by (a) deleting the words "his or her" wherever they appear and substituting the words "the person's"; and (b) deleting the words "he or she" wherever they appear and substituting the words "the person". 36. Section 19 of the Act is amended by deleting the words "Trial Division" and substituting the words "Supreme Court". 37. Section 20 of the Act is amended by deleting the words "Trial Division" and substituting the words "Supreme Court". 38. Subsection 30(3) of the Act is amended by (a) deleting the words "his or her examination of" and substituting the word "examining"; and (b) deleting the words "he or she" and substituting the words "the person". 39. Subsection 32(1) of the Act is amended by deleting the words "he or she" and substituting the words "the registrar". 40. The Act is amended by adding immediately after section 38 the following: Lieutenant-Governor in Council regulations 38.1 (1) The Lieutenant-Governor in Council may make regulations (a) prescribing the requirements for attendance through the use of audio-visual technology; (b) defining a term used
but not defined in this Act; and (c) generally, to give effect to the purpose of this Act. (2) The Lieutenant-Governor in Council may in addition to or instead of regulations made under paragraph (1)(a) adopt by reference and constitute as regulations the whole or part of provisions of the Rules of the Law Society of Newfoundland and Labrador, with or without modification, and including any amendments to the Rules of the Law Society of Newfoundland and Labrador. PART IV RSNL1990 cW-10 as amended 41. The Wills Act is amended by adding immediately after section 1 the following: Definitions 1.1 In this Act, (a) "audio-visual technology" means technology which allows a person signing a document and a person witnessing the signing of the document who are not in the physical presence of one another to see, hear and communicate with each other at all times; (b) "lawyer" means a member in good standing of the Law Society of
Newfoundland and Labrador; and (c) "minister" means, unless the context indicates otherwise, the minister appointed under the Executive Council Act to administer this Act. 42. (1) Subsection 2(1) of the Act is amended by deleting the words "him or her" and substituting the words "the testator". (2) Section 2 of the Act is amended by adding immediately after subsection (1) the following: (1.1) For the purposes of subsection (1), the words "in the presence of" includes attendance through the use of audio-visual technology provided that the witness (a) is a lawyer; and (b) complies with the requirements prescribed in the regulations. (1.2) For greater certainty, where only one of the witnesses to the signing of a will is a lawyer, the words "in the presence of" do not include attendance through the use of audio-visual technology in relation to the witness that is not a lawyer. (3) Subsection 2(2) of the Act is amended by deleting the words "his or her" and substituting the words "the sailor's or fisher's". 43. Subsection 7(2) of the Act is amended by (a) deleting the words "he or she" and substituting the words "the beneficiary"; and (b) deleting the words "his or her" and substituting the words "the beneficiary's". 44. Section 9 of the Act is amended by deleting the words "his or her" wherever they appear and substituting the words "the person's". 45. Paragraph 11(c) of the Act is amended by deleting the words "his or her" wherever they appear and substituting the words "the testator's". 46. Section 14 of the Act is amended by deleting the words "his or her" and substituting the words "the testator's". 47. Section 16 of the Act is amended by deleting the words "he or she" and substituting the words "the testator". 48. Subsection 17(1) of the Act is amended by deleting the words 'his or her" wherever they appear and substituting the words "the person's". 49. Subsection 18(1) of the Act is amended by deleting the words "he or she" and substituting the words "the person". 50. Subsection 19(1) of the Act is repealed and the following substituted: Gift to sibling 19. (1) Except where a contrary intention appears by the will,
where a person dies in the lifetime of a testator either before or after the
testator makes the will and that person (a) is a sibling of the
testator to whom, either as an individual or as a member of a class, is devised
or bequeathed an estate or interest in real or personal property not
determinable at or before the testator's death; and (b) leaves a child or
children living at the time of the death of the testator, the devise or
bequest does not lapse, but takes effect as if it had been made directly to (c) that child; or (d) those children,
share and share alike, and, in this section, a child is considered to be living at the time of the death of the testator if the child, having been conceived before the death of the testator, is born alive after the death of the testator. 51. (1) Paragraph 24(1)(c) of the Act is amended by deleting the words "his or her" and substituting the words "the testator's". (2) Paragraph 24(1)(d) of the Act is amended by deleting the number "1" and substituting the word "one". 52. Section 35 of the Act is amended by deleting the words "Minister of Justice" and substituting the word "minister". 53. Section 36 of the Act is amended by deleting the words "Minister of Justice" and substituting the word "minister". 54. Section 37 of the Act is amended by deleting the words "Minister of Justice" and substituting the word "minister". 55. Section 38 of the Act is amended by deleting the words "Minister of Justice" and substituting the word "minister". 56. Section 39 of the Act is amended by (a) deleting the words "Minister of Justice" and substituting the word "minister"; and (b) deleting the words "his or her" and substituting the word "the". 57. (1) Subsection 40(1) of the Act is deleted and the following substituted: Disclosure of information 40. (1) Information contained in the registration system
concerning the international will of a testator shall not be released from the
system except in accordance with an agreement made under section 38 or except
to a person who satisfies the registrar that the person is the testator or that (a) the person is
authorized by the testator to obtain the information; or (b) the testator is dead
and the person is an appropriate person to have access to the information. (2) Subsection 40(2) of the Act is amended by deleting the words "he or she" wherever they appear and substituting the words "the person". 58. Subsection 41(1) of the Act is amended by (a) deleting the number "1" and substituting the word "one"; (b) deleting the words "his or her" wherever they appear and substituting the words "the member's"; and (c) deleting the words "he or she" and substituting the words "the member". 59. (1) Section 42 of the Act is amended by renumbering it as subsection 42(1), deleting the word "and" at the end of paragraph (c) and adding immediately after that paragraph the following: (c.1) prescribing the requirements for attendance through the use of audio-visual technology; and (2) Section 42 of the Act is amended by adding immediately after subsection (1) the following: (2) The Lieutenant-Governor
in Council may in addition to or instead of
regulations made under paragraph (1)(c.1) adopt by reference and constitute as
regulations the whole or part of provisions of the Rules of the Law Society of
Newfoundland and Labrador, with or without modification, and including any amendments
to the Rules of the Law Society of Newfoundland and Labrador. Commencement 60. This Act comes into force on a day to be proclaimed by the Lieutenant-Governor in Council. ŠKing's Printer |