Second

Session, 50th General Assembly

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

Short title

PART

COMMISSIONERS FOR OATHS ACT

S.1.1 Added

Definitions

S.2 Amdt.

Appointments in province

S.3 Amdt.

Appointments outside province

S.4 R&S

Barristers

S.5 Amdt.

Members of Assembly

S.6 Amdt.

Mayors

S.7 Amdt.

Other commissioners

S.7.1 Amdt.

Commissioners for special purposes

S.8 Amdt.

Duration of appointments

S.9 Amdt.

Applications

S.10 Amdt.

Evidence of appointment

S.11 Amdt.

Expiry of appointment

S.13 Amdt.

Revocation of appointment

S.14 Amdt.

Minister may set fees

S.15 Amdt.

Offence

S.16 Added

Regulations

PART

NOTARIES PUBLIC ACT

S.1.1 Added

Definitions

S.2 Amdt.

Appointment of notaries

S.3 Amdt.

Fees

S.4 Amdt.

Certificate

S.5 Amdt.

Revocation of appointment

S.6 R&S

Powers

S.8 R&S

Oaths,

affirmations, etc.

S.9 Amdt.

Seal

S.10 Amdt.

Offence

S.11 Added

Regulations

PART

III

REGISTRATION OF DEEDS ACT, 2009

S.2 Amdt.

Definitions

S.5 Amdt.

Deputy registrar

S.6 R&S

Protection of registrar

S.7 Amdt.

Registration

S.9 Amdt.

Electronic registration

S.15 R&S

Documents

executed in the province

S.16 Amdt.

Documents executed out of province

S.17 Amdt.

Execution

S.19 Amdt.

Compelling witnesses

S.20 Amdt.

Appeal

S.30 Amdt.

Searches

S.32 Amdt.

Maintenance of books and records

S.38.1 Added

Lieutenant-Governor in Council Regulations

PART

WILLS ACT

S.1.1 Added

Definitions

S.2 Amdt.

Wills, how executed

S.7 Amdt.

Devise to witness not void

S.9 Amdt.

Revocation by marriage

S.11 Amdt.

Manner of revocation

S.14 Amdt.

Subsequent conveyance not to affect will

S.16 Amdt.

Construction of general devise

S.17 Amdt.

Construction of certain terms

S.18 Amdt.

To prevent lapsing of devise

S.19 Amdt.

Gifts

to sibling

S.24 Amdt.

Form re moveables

S.35 Amdt.

Request to ratify convention

S.36 Amdt.

Effective date determined

S.37 Amdt.

Registration system

S.38 Amdt.

Agreements re registration system

S.39 Amdt.

Joint system instead of provincial system

S.40 Amdt.

Disclosure of information

S.41 Amdt.

Use of registration system

S.42 Amdt.

Regulations

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;

(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".

Section 4 of the Act is repealed and the

following substituted:

Barristers

(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.

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".

(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".

Section 9 of the Act is amended by deleting

the words "Minister of Justice" and substituting the word

"minister".

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".

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

(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

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,

(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.

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".

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".

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".

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".

Section 6 of the Act is repealed and the

following substituted:

Powers

(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.

Section 8 of the Act is repealed and the

following substituted:

Oaths,

affirmations, etc.

(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

(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

REGISTRATION OF DEEDS ACT, 2009

SNL2009 cR-10.01

as amended

(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;

Section 5 of the Act is amended by deleting

the words "his or her" and substituting the words "the

registrar's".

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".

Section 9 of the Act is amended by deleting

the words "he or she" wherever they appear and substituting the words

"the person".

Section 15 of the Act is repealed and the

following substituted:

Documents

executed in the province

(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.

(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".

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".

Section 19 of the Act is amended by deleting

the words "Trial Division" and substituting the words "Supreme

Court".

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) T he 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

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,

(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".

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".

Section 14 of the Act is amended by deleting

the words "his or her" and substituting the words "the

testator's".

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

(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,

th e devise or

bequest does not lapse, but takes effect as if it had been made directly to

(

c) that child; or

(

d) t hose 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".

Section 35 of the Act is amended by deleting

the words "Minister of Justice" and substituting the word

"minister".

Section 36 of the Act is amended by deleting

the words "Minister of Justice" and substituting the word

"minister".

Section 37 of the Act is amended by deleting

the words "Minister of Justice" and substituting the word

"minister".

Section 38 of the Act is amended by deleting

the words "Minister of Justice" and substituting the word "minister".

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

(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".

(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.

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