Subsequent to temporarily allowing remote witnessing of affidavits in support of land title applications during this extraordinary time, the Land Title and Survey Authority of British Columbia (LTSA) has received many inquiries from customers seeking greater clarification on the various practice implications outlined in the Director of Land Titles’ Practice Bulletin 01-20. Additional updates were communicated on March 31, 2020 and April 7, 2020, along with Practice Tips in response to these inquiries.
Carlos MacDonald, Director of Land Titles, also participated in a webinar hosted by the Canadian Bar Association of BC on April 9, 2020 – here are some of the questions and answers from that session:
Preparing Affidavits and Documents
- What is considered a ‘true copy’?
The definition of ‘true copy’ in the Land Title Act changed in November 2019. Whereas it used to refer to the wet-ink signed version of the PDF Electronic Filing System form, this is now known as the ‘execution copy’. In the context of supporting documents, the original document is on paper so the ‘true copy’ is an exact copy of the original document.
- Can the signatures be electronic, if clients don’t have access to printers?No, not at this time. While we have started to assess that technology, we likely won’t have a solution in place in time for this wave of COVID-19.
- Practice Bulletin 01-20 did not specifically say documents attached to Declarations – are these included from the Form 17 list? If they are in the list for Form 17, are they also okay for Declarations?Only those supporting documents that are listed in the temporary list may be true copies (plus s.49 affidavits and Strata Form Fs). Yes, if the documents are in the list for Form 17, they are acceptable for Declarations.
- To clarify, the sample s.49 affidavit (Execution by an Individual) does not necessarily require paragraph two re video conferencing does it?Correct.
- I’d like clarification on the comparison of affidavits as outlined in #4 of Practice Bulletin 01-20. Does the lawyer need to initial and, if so, how?I recently administered an oath to an affidavit for court purposes using video conferencing. We compared the form of the affidavit and I had the client initial each page of the affidavit in front of me via video conference. I had that initialed copy scanned and sent to me. I then administered the oath, the client signed and then scanned and sent the client-initialled-and-signed affidavit again to me. I then signed the client-initialled-and-signed affidavit and provided a Certificate in the form of my own affidavit to verity the copies before me were identical.Is this appropriate? I believe this was the only way to assure a true identical copy of the client’s same affidavit. If I had initialled the first copy, it would not be identical to my client’s initialled-and-signed copy.
Paragraphs 4-7 in Practice Bulletin 01-20 were adopted nearly verbatim from the court endorsed procedure. The procedure you describe adds another step to the process (having the client send the initialled version before he/she swears it before you). The rationale provided makes sense for ensuring you and the deponent have the exact same copy of the affidavit. The extra step, while it adds an additional layer of protection and confirmation, does not precisely follow the required process – the bullet points below elaborate on the required process:
- You draft and send the affidavit and exhibits to your client, who prints it out.
- Once on video conference, the client reads the affidavit to you, letting you know when they’re turning pages.
- As you go through the pages together verbally, you each initial your respective versions of the affidavit.
- After the review, you administer the oath and watch the deponent sign the affidavit.
- The deponent sends you the affidavit that he/she has initialled and signed.
- You compare your initialled copy to the initialled and signed copy the deponent sent you. This is the step where you verify you both had the same version of the affidavit when you administered the oath.
- You apply your signature to the version of the affidavit the deponent sent you.
- You attach both copies of the affidavit to a declaration form for submission to the Land Title Office.
These steps meet the requirements and allow you to satisfy yourself that the two copies were the same.
Remote Witnessing Procedures and Roles
- Can a lawyer print the scanned copy of the affidavit provided by the client and sign that copy rather than submitting two copies?No, two copies are required. Although the lawyer or notary can print the scanned copy provided by the client and sign that copy, we also need the copy that the lawyer or notary had before him/her when the affidavit was sworn remotely to confirm that the affidavits were the same.
- If there are two authorized signatories, can all three parties sign counterpart (ie witness, authorized signatory #1, and authorized signatory #2)?Yes.
- Re a s.49 affidavit, if I am video conferencing with clients who are signing a Form B Mortgage, and I have never met them before, is it permissible for me to use the suggested language (“I am acquainted with the signature of the transferor through the use of video conferencing and believe that the signature subscribed to the instrument is the signature of the transferor”) for myself to swear the affidavit before my assistant who is a commissioner for oaths? I will review their ID during the video conference and watch them sign.There are two parts to the question and answer – with respect to using the language you provided, the words “through the use of video conferencing” are not required. You need to be comfortable swearing that you’re acquainted with the transferor, but how you became acquainted does not need to be in the s.49 affidavit. Including that language suggests there is a different standard for becoming acquainted with someone through video conference, which is not the case.The second part of the question re swearing the affidavit before your assistant who is a commissioner for oaths works as long as the s.49 affidavit is not sworn remotely. Only lawyers and notaries are allowed to swear affidavits remotely for land title purposes.
- To confirm, if a transferor signs a Form A by video, and the lawyer watches them sign the Form A by video, can the lawyer then swear an affidavit in front of another lawyer in their office under s.49, as the lawyer is acquainted with the signature of the transferor?If you’re watching the transferor sign the Form A and that is the only evidence upon which you’re basing the level of acquaintance you have with the signature, it may not be sufficient.A better practice may be for the transferor to send a copy of their signature that they’ve signed on camera, and sent to you while still on camera, before the transferor signs the actual Form A and sends it, in order to meet the straight face test. In this way, you would already be acquainted with the signature by the time the signed Form A is received.
Ultimately, you’re swearing the affidavit so please exercise your professional judgement.
- Is it okay if a lawyer meets the client for the first time by video conference, views their ID on screen during the video conference to then say they are acquainted with the signature?Similar to the response above, meeting a client for the first time by video conference may fall below the best practices established by the Law Society of British Columbia for using video conferencing when providing legal advice if the lawyer hasn’t already verified the identity of the client. Where ID is produced to support identity verification, you have to ensure that a copy of the ID (front and back) is sent to you in advance of the video conference. Then, during the video conference, you would compare the picture and information on the scanned ID with the image of your client on the screen, and compare the ID in their hands (front and back) with the scanned ID you received earlier. At that point, you would’ve likely satisfied yourself that you’re acquainted with the client but you would still need to acquaint yourself with his/her signature.
- Are statutory declarations also able to be remotely declared? For example, a statutory declaration of attorney re age which is attached to an electronic Power of Attorney?Yes.
- To use the remote witnessing of a s. 49 Affidavit of Execution technique, do we always need to have a third person on the video conference with the transferor? For example, if we’re signing a Form A and the lawyer is video conferencing with the transferor, do we need at least one staff member, or transferor’s family member, to be present via video to witness the transferor’s signature, and thereafter swear the Affidavit of Execution (again via video) in front of the lawyer?You don’t always need to have a third person on the video conference with the transferor to use the remote swearing of s.49 Affidavit of Execution, provided there is another lawyer or notary before whom to swear the affidavit.The Practice Tips published on March 31, 2020 refer to a similar scenario when there is a firm with only one lawyer or notary. The lawyer could be with the client by video conference and then swear the affidavit in front of a second lawyer or notary. However, if there’s only one lawyer or notary available, then it makes sense to have a third person from the office in the video conference who can then swear the s.49 affidavit (as deponent).
The other suggestion in the question was to have another family member of the transferor attend the video conference. The family member likely would not have to attend the same video conference in order to be able to swear a s.49 affidavit since they would be acquainted with the transferor and their signature. The family member could swear the affidavit in a separate video conference if they weren’t available for the first meeting, or if you wanted to meet with the transferor alone.
- Can an articling student remote witness affidavits?No, not for land title purposes. Articled students are commissioners for taking affidavits by virtue of a regulation under the Evidence Act, not because they meet the definition of a BC lawyer. As outlined in Practice Bulletin 01-20, commissioners for taking affidavits are not permitted to remotely witness affidavits.
- With respect to the jurat, who is the deponent? The transferor or the person swearing the affidavit?The deponent is the person swearing the affidavit. It is not the transferor because independent corroboration is required to confirm that the signature on the Form A is indeed the transferor’s signature.
- I am confused – more than one real estate lawyer has been sending emails saying we can now witness mortgages and land title transfer forms for registration remotely with our clients. Yet it sounds like the LTSA says we cannot witness such documents remotely.Correct – there is no authority to remotely witness land title forms. While it is a less elegant solution than what the remote signing of land title forms could be, the remote witnessing of s.49 affidavits is a workaround that effectively allows a legal practitioner to comply with Part 5 signing requirements in the Land Title Act without having to meet the client/transferor in person.
- Where a lawyer is appointed as an authorized signatory of a corporate client in order to sign a transfer form, if the lawyer is not able to meet with an officer to sign as a secondary signatory, can we use a s.49 affidavit and have it sworn remotely?Yes, if everyone is working from home then someone who is acquainted with the signature of the law firm’s staff member could remotely swear a s.49 affidavit. This question is a good variation on the scenario outlined in Practice Tip #1, published on March 31, 2020.
- May I witness the signing of an affidavit where the client resides in Alberta?Yes. A related question is what location does the lawyer or notary submit as the location where the affidavit was sworn – where the lawyer/notary is situated or where the client/deponent is? Location is based on where the lawyer/notary is situated.
Enduring Power of Attorney (EPOA)
Do you allow the same allowances for affidavits in terms of virtual signing to be made for witnessing requirements for Power of Attorneys (POA)?
The signature of the Adult donor in an Enduring Power of Attorney (“EPOA”) used for land title purposes must be witnessed in accordance with Part 5 of the Land Title Act. Where the Adult is unable to attend before a BC lawyer or notary, the following alternative method to witness and confirm the Adult’s signature may be used. This method complies with the execution and witnessing requirements under the Land Title Act and Power of Attorney Act.
Signing and Witnessing the EPOA
Section 16(1) of the Power of Attorney Act permits an Adult to sign an EPOA in the presence of two layperson witnesses. The two witnesses must provide evidence to confirm they are not prohibited from acting as witnesses under s. 16(6) of the Power of Attorney Act, either by covering off the criteria listed in s. 16(6) in the POA instrument itself, or by including it in an accompanying affidavit.
Where a BC lawyer or notary hasn’t witnessed the Adult’s signature, the Adult’s signature must also be confirmed in accordance with s. 49 of the Land Title Act. Section 49 provides that someone who is acquainted with both the transferor and his/her signature may swear an affidavit stating the belief that the signature in the instrument is indeed the signature of the person named in the instrument as transferor, or in the case of an EPOA, the Adult. Please note:
- Only one of the witnesses to the Adult’s signature on the EPOA is required to swear a s. 49 affidavit.
- The Attorney’s signature does not need to be executed under Land Title Act Part 5, so a s. 49 affidavit is not required to confirm the Attorney’s signature.
See Schedule B of Practice Bulletin 02-11 Enduring Powers of Attorney for a suggested form of affidavit of witness.
Signing and Witnessing the s. 49 Affidavit Remotely Pursuant to Practice Bulletin 01-20 Process for Remote Witnessing of Affidavits for Use in Land Title Applications (PB 01-20)
- Until further notice, if either the individual swearing the s. 49 affidavit (the “deponent”) or the commissioner for taking affidavits is unable or unwilling to be in one another’s physical presence due to COVID-19, the affidavit may be remotely witnessed by a BC lawyer or notary who is acting for the Adult. The remote witnessing of the s. 49 affidavit does not change the requirement in the Power of Attorney Act that the Adult’s signature be witnessed in the presence of two witnesses. Please refer to paragraph 5.92 in the Land Title Practice Manual for a suggested form of a s. 49 affidavit.
- Please follow the process set out in PB 01-20 for the remote swearing of the s. 49 affidavit.
- Effective May 19, 2020 until further notice, practitioners may also sign and witness an EPOA electronically pursuant to the guidelines provided in Ministerial Order No. M162. If you use this alternative, a statement to this effect must be contained in the EPOA and, in order to meet the Part 5 requirements under the Land Title Act, a section 49 affidavit must also be included with your land title application explaining the circumstances.
- If the aforementioned s. 16(6) of the Power of Attorney Act matters are covered off in an affidavit as opposed to being included in the POA instrument itself, the same remote witnessing steps may be used for the affidavit covering off those matters.
- The two copies of the s. 49 affidavit are submitted to the Land Title Office in support of the “Form 17 Charge, Notation or Filing” application for Power of Attorney. A Power of Attorney and affidavit are supporting documents under section 168.43 of the Land Title Act. Although the original Power of Attorney instrument must be in the possession of the subscriber when e-signing the Form 17, the s. 49 affidavit in support of the Form 17 may be a true copy. In this regard, see section 3.3.7 in the E-filing Directions for further guidance.