COVID-19: VIRTUAL AFFIDAVITS IN SUPREME COURT PROCEEDINGS
Thursday, April 2, 2020
Due to the ongoing COVID-19 pandemic, the Nova Scotia Supreme Court is expanding the options available to counsel when preparing and filing affidavits with the Court to include virtual affidavits (using video technology).
The requirements for the commissioning of affidavits are set forth in the Notaries and Commissioners Act and the Civil Procedure Rules of Nova Scotia. Rule 39.08(2)(d) provides that the deponent must appear personally before the authority administering the jurat.
During the COVID-19 pandemic, some accommodations must be made for the commissioning of affidavits in circumstances where it is not possible or is medically unsafe for the deponent to physically attend before a commissioner. Examples might include deponents who are unable to leave their residences, deponents who are not permitted to receive visitors, or deponents who are required to self-isolate.
With the agreement of the Nova Scotia Barristers’ Society, until further notice, the following accommodations will be made for affidavits to be used in any proceeding in the Supreme Court, subject always to the discretion of the Court to apply the best evidence requirements to their use.
Please note that the accommodations outlined below are further to the March 26, 2020, directive regarding the electronic filing of documents, which states that the Court will accept unsworn affidavits, unless a judge directs otherwise. In those instances, a sworn copy of the affidavit is required at the hearing or alternatively, the individual will be required to affirm their affidavit evidence at the hearing.
Any affidavit to be sworn using video technology must contain a paragraph at the end of the body of the affidavit describing that the deponent was not physically present before the commissioner, but was linked with the commissioner using video technology and that the process described below for remote commissioning of affidavits was used. Additionally, the jurat should be revised to accurately reflect the circumstances of the swearing/affirming. An example can be found on the Nova Scotia Barristers’ Society website.
While connected via video technology, the deponent must show the commissioner the front and back of the deponent’s current government-issued photo identification. The commissioner must compare the video image of the deponent and information in the deponent’s government-issued photo identification to be reasonably satisfied it is the same person and that the document is valid and current. The commissioner must also take a screenshot of the front and back of the deponent’s government-issued photo identification and retain it. For clarity, identification is only necessary if the deponent is not already personally known to the commissioner.
The commissioner and the deponent are both required to have a paper copy of the affidavit, including all exhibits, before each of them while connected via video technology.
The commissioner and the deponent must review each page of the affidavit and exhibits to verify that the pages are identical and if so, must initial each page in the lower right corner.
At the conclusion of the review, the commissioner will administer the oath, the deponent will state what needs to be said to swear or affirm the truth of the facts, and the commissioner must watch the deponent sign his or her name to the affidavit. The deponent will then send the signed affidavit, with the exhibits, electronically to the commissioner.
Before completing the affidavit, the commissioner must compare each page of the copy received from the deponent against the initialed copy that was before him or her in the video conference and may affix his or her name to the jurat only upon being satisfied that the two copies are identical.
The two copies will then be attached together with a certificate signed by the commissioner, stating that the commissioner was satisfied the process was necessary because it was impossible or unsafe, for medical reasons, for the deponent and the commissioner to be physically present together. The completed package would then be permitted to be filed.
ISSUED at Halifax, Nova Scotia, this 2nd day of April 2020.
Chief Justice Deborah K. Smith
COVID-19: FREQUENTLY ASKED QUESTIONS RE: MATTERS IN THE SUPREME COURT (GENERAL DIVISION)
Wednesday, April 1, 2020
The COVID-19 global pandemic has placed all of us in an unprecedented situation. Organizations and institutions around the world, including the courts, are attempting to deal with this crisis in the best and safest manner possible.
Members of the Nova Scotia Judiciary have met with public health officials, including Nova Scotia’s Chief Medical Officer of Health. The Supreme Court’s decision to adopt an essential services model was based on the advice of these experts.
We appreciate the difficulties such a model presents; however, the safety of those who work in and appear before the Courts must govern how we function during this crisis. We are attempting to balance the need for the Courts to remain open, with the need to ensure that the public and our staff are safe. It can be a delicate and difficult balancing act sometimes. We ask that you please keep this in mind in the weeks ahead.
This document should be read in conjunction with the various directives issued by the Supreme Court in relation to COVID-19, all of which can be found on the Courts’ website at https://www.courts.ns.ca/News_of_Courts/COVID19_Preventative_Measures.htm.
This is a difficult and uncertain time for everyone. We know that many of you have questions and we have endeavoured to answer some of those below. We will update this document regularly as more questions come in.
In the meantime, we ask for your patience and cooperation as we work through these new processes.
Deborah K. Smith
Chief Justice of the Nova Scotia Supreme Court
Q/ Why has the Supreme Court adopted an essential services model?
The Chief Justices and the Chief Judge met with Dr. Robert Strang and representatives of the Nova Scotia Department of Justice, including Court Services staff, on March 18, 2020. During that meeting, we were advised that courthouse staffing levels had to be reduced to an absolute minimum. Staffing the front desks to accept and process court documents, as well as having judicial assistants and other staff members physically in the building to support judges and record court proceedings was putting them — and the public — at risk. With that in mind, the Court decided to adopt an essential services model, which enables the Court to continue operating with significantly reduced staff.
Q/ What does an essential services model mean?
An essential services model means that, until further notice, the Supreme Court will only be dealing with and accepting documents in relation to urgent or essential matters, as determined by a judge. For those matters that are deemed urgent or essential, judges will consider whether alternative measures, such as telephone or videoconferencing, may be used to hear those matters.
It also means that court documents related to matters not proceeding in the immediate future should not be filed until the Court has resumed normal operations. This will help reduce the number of new filings at courthouses, so staff can focus on processing documents related to the urgent and essential matters that are proceeding.
Q/ What does urgent or essential mean?
Individual judges will make their own determination of what is urgent or essential, based on the facts before them. Generally, urgent could mean an emergency or a situation that requires immediate action or attention, while essential would be defined as absolutely necessary, such as documents that need to be filed to preserve a limitation period. If you are unsure whether something might be considered urgent or essential, you should contact the Court for further directions.
Q/ Why can’t the Court accept non-essential documents during the pandemic?
Documents filed with the Court must be processed. That requires staff to work in-person at the courthouses. The advice we have received from public health officials is that courthouse staffing levels should be reduced to an absolute minimum while the situation with the COVID-19 pandemic continues. Reducing the number of documents filed with the Court ensures staff can focus on processing documents related to the urgent and essential matters that are proceeding.
Q/ Can someone file court documents to preserve a limitation period?
Yes, documents that need to be filed to preserve a limitation period will be considered urgent or essential. Please indicate in your covering letter to the Court that you are filing your documents to preserve a limitation period.
Q/ How can lawyers communicate with the Court if there are urgent or essential matters to be dealt with?
Any documents related to urgent or essential matters in the Supreme Court should be submitted by email or fax, as per the Court’s directive of March 26. That directive is available online at https://www.courts.ns.ca/News_of_Courts/documents/NSSC_E-Filing_NR_03_26_20.pdf. A link to the list of email addresses and fax numbers for the Supreme Courts is included in that directive. If someone does not have access to a computer or fax machine, they should call the Court for further directions.
Q/ Could the Court be hearing more matters with the help of technology?
Judges in the Supreme Court are already using telephone and videoconferencing to hear the urgent and essential matters that are proceeding. However, it may not be appropriate to use technology in all instances. Court proceedings are not like office meetings. We need to ensure we have an appropriate level of security; a proper and reliable court record, in those situations where a record is required; and a system that does not require in-person staff involvement, to help keep staffing levels at a minimum. The Court is exploring what options may exist that meet these requirements and we will keep you advised of any developments in this regard.
Q/ Can we do Date Assignment Conferences during the pandemic?
A decision has been made not to schedule any new matters until further notice, to help deal with the Jordan issues we are expecting once this crisis is over. For now, we need to leave trial dates open to allow some flexibility to schedule urgent criminal matters that will need to be heard once the Courts resume normal operations. Accordingly, the Court will not be proceeding with Date Assignment Conferences at this time.
Q/ When will the courts resume normal operations?
Our goal is for the Courts to return to normal operations as soon as possible. However, we are relying on the advice of public health officials on when it may be safe to do so. These preventative measures will remain in place until we are confident the health risks to those working in and appearing before the Courts is significantly reduced.
Q/ When can we expect further updates?
Further updates will be communicated publicly as new directives are finalized. All public notices from the Nova Scotia Courts will be posted on the Courts’ website at https://www.courts.ns.ca/News_of_Courts/COVID19_Preventative_Measures.htm
COVID-19: SURETY DECLARATIONS UNDER S. 515.1 OF THE CRIMINAL CODE (Tuesday, March 31, 2020): https://www.courts.ns.ca/News_of_Courts/documents/NSPC_Surety_Declarations_03_31_20.pdf
COVID-19: CONSENT BAIL VARIATIONS PROCEDURE PROVINCIAL COURT AND YOUTH JUSTICE COURT (Sunday, March 29, 2020): https://www.courts.ns.ca/News_of_Courts/documents/NSPC_Consent_Bail_Variation_Procedure_03_29_20.pdf