Illegible Signature (Commissioner) or (Notary)
Vinski et al. v. Lack et al., 1987 CanLII 4408 (ON SC)
In my view, when a person authorized by the Commissioners for taking Affidavits Act is performing his/her duty thereunder by administering an oath or declaration in signing the jurat, it is important that his/her signature be legible, or can be made out by reference to some other addition immediately below the signature (such as typed or rubber-stamped name of the person), so as to give strangers notice of who purported to take the oath or declaration, and so that ss. 10, 11, 12 and 13 of the Act are not rendered nugatory.
During the course of this motion, I asked Mr. Lewin if he was prepared to supply an affidavit signed with a legible signature by the commissioner who was, as it turned out, himself, but he refused to supply such an affidavit, and he refuses to change his signature so as to make it legible.
He then handed me a separate, loose, piece of white notepaper on which appears the same illegible scrawl with a handwritten statement saying "certified to be the authentic distinctive signature of H.M. Lewin", and on which are two impressions of a notarial seal of H.M. Lewin, Notary Public, and I was told that this piece of paper had been on other occasions, and ought to be now accepted as a complete solution to this problem. I disagree. This piece of paper is worthless to cure the defective signature, as it fails to address the underlying reason as to why the signature must be legible in the first place.
I adopt as the correct position in Ontario, the statement above-quoted from the English Annual Supreme Court Practice, and the motion is dismissed because of the defectively sworn affidavit in support, but such dismissal is without prejudice to a further motion supported by an affidavit that, inter alia, has the signature of the commissioner written plainly, legibly, or, if not, then further elucidated by means of a rubber- stamped or typed addition of his name.
I think that unless there are some unusual circumstances, the signatures of deponents should also be plainly legible so questions do not arise as to the authenticity of the execution of affidavits.
I should also add that where an affidavit is filed for use on a contested motion, any such objection should be raised at the earliest opportunity which, in most cases, will be when the affidavit is served. If no objection is taken until the opening of the motion, thus not affording the party tendering the affidavit an opportunity to correct the defect in advance of the hearing date, such circumstances might well call for the application of rules 2.01(1) and 2.03.
- Vinski et al. v. Lack et al., 1987 CanLII 4408 (ON SC), <http://canlii.ca/t/g13vd>, retrieved on 2020-09-05