2023 Bill 23

	23


Second Session, 50th General Assembly 1 Charles III, 2023
BILL 23
AN ACT TO AMEND VARIOUS ACTS OF THE PROVINCE RESPECTING THE ALTERNATE WITNESSING OF DOCUMENTS BY LAWYERS
Received and Read the First Time................................................................
Second Reading............................................................................................
Committee.....................................................................................................
Third Reading...............................................................................................
Royal Assent.................................................................................................
HONOURABLE JOHN HOGAN, KC Minister of Justice and Public Safety and Attorney General
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

· allow lawyers in good standing with the Law Society of Newfoundland and Labrador to witness documents identified in those Acts using audio-visual technology;

· authorize the Lieutenant-Governor in Council to make regulations prescribing the requirement for attendance through the use of audio-visual technology; and

· 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
COMMISSIONERS FOR OATHS ACT

2. S.1.1 Added
Definitions

3. S.2 Amdt.
Appointments in province

4. S.3 Amdt.
Appointments outside province

5. S.4 R&S

Barristers

6. S.5 Amdt.
Members of Assembly

7. S.6 Amdt.
Mayors

8. S.7 Amdt.
Other commissioners

9. S.7.1 Amdt.
Commissioners for special purposes

10. S.8 Amdt.
Duration of appointments

11. S.9 Amdt.
Applications

12. S.10 Amdt.
Evidence of appointment

13. S.11 Amdt.
Expiry of appointment

14. S.13 Amdt.
Revocation of appointment

15. S.14 Amdt.
Minister may set fees

16. S.15 Amdt.
Offence

17. S.16 Added
Regulations

PART II
NOTARIES PUBLIC ACT

18. S.1.1 Added

Definitions

19. S.2 Amdt.
Appointment of notaries

20. S.3 Amdt.
Fees

21. S.4 Amdt.
Certificate

22. S.5 Amdt.
Revocation of appointment

23. S.6 R&S

Powers

24. S.8 R&S

Oaths, affirmations, etc.

25. S.9 Amdt.
Seal

26. S.10 Amdt.
Offence

27. S.11 Added
Regulations

PART III
REGISTRATION OF DEEDS ACT, 2009

28. S.2 Amdt.
Definitions

29. S.5 Amdt.
Deputy registrar

30. S.6 R&S
Protection of registrar

31. S.7 Amdt.
Registration

32. S.9 Amdt.
Electronic registration

33. S.15 R&S

Documents executed in the province

34. S.16 Amdt.
Documents executed out of province

35. S.17 Amdt.
Execution

36. S.19 Amdt.
Compelling witnesses

37. S.20 Amdt.
Appeal

38. S.30 Amdt.
Searches

39. S.32 Amdt.
Maintenance of books and records

40. S.38.1 Added
Lieutenant-Governor in Council Regulations

PART IV
WILLS ACT

41. S.1.1 Added
Definitions

42. S.2 Amdt.
Wills, how executed

43. S.7 Amdt.
Devise to witness not void

44. S.9 Amdt.
Revocation by marriage

45. S.11 Amdt.
Manner of revocation

46. S.14 Amdt.
Subsequent conveyance not to affect will

47. S.16 Amdt.
Construction of general devise

48. S.17 Amdt.
Construction of certain terms

49. S.18 Amdt.
To prevent lapsing of devise

50. S.19 Amdt.

Gifts to sibling

51. S.24 Amdt.
Form re moveables

52. S.35 Amdt.
Request to ratify convention

53. S.36 Amdt.
Effective date determined

54. S.37 Amdt.
Registration system

55. S.38 Amdt.
Agreements re registration system

56. S.39 Amdt.
Joint system instead of provincial system

57. S.40 Amdt.
Disclosure of information

58. S.41 Amdt.
Use of registration system

59. S.42 Amdt.
Regulations

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
COMMISSIONERS FOR OATHS ACT

RSNL1990 cC-25
as amended

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;

(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

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

(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
NOTARIES PUBLIC ACT

RSNL1990 cN-5
as amended

18. The Notaries Public Act is amended by adding immediately after section 1 the following:

Definitions

1.1 In this Act,

(b) "lawyer" means a member in good standing of the Law Society of Newfoundland and Labrador; and

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";

(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

(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
REGISTRATION OF DEEDS ACT, 2009

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;

(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

PART IV
WILLS ACT

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,

(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

(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

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.