COVID-19 Review of Positions on Remote Signing Across Canada
In this epic blog post we’ve compiled the official position on remote signing from all the provinces we do business in, as of March 24, 2020. It’s interesting to see the different stances across the country as all jurisdictions struggle to adapt to the current situation.
As always, we strive to be accurate. If you see anything that is potentially misleading or incorrect, please let us know as soon as possible.
Use the buttons below to jump to your province of interest.
British Columbia
The Registrar of Land Titles on March 17, 2020 released on their website guidance to meet Execution Requirements in light of COVID-19.
Part 5 of the Land Title Act is prescriptive and sections 42 to 48 require an individual executing an instrument to appear before an officer. However, to maintain social distance and prevent COVID-19 transmission, individuals may be unwilling or unable to attend before an officer. In these circumstances, the Registrar of Land Titles will accept an Affidavit of Execution sworn under section 49 of the Land Title Act. For more details on section 49, including preferred forms of affidavit, please see paragraphs 5.88 to 5.101 of the Land Title Practice Manual.
Additionally, the Registrar will not take issue with instruments that are executed and witnessed contemporaneously in counterpart, where the transferor’s signature is on a different page from that of the officer. This allows a transferor to sign an execution copy of, for example, a Form A – Freehold Transfer, in the presence of, but at a safe distance from, the officer who would apply his/her signature and officer details on an identical execution copy. If the Registrar requires the applicant to produce the execution copy under section 168.57 of the Land Title Act, having the two signatures on separate pages will not trigger any action against the designate who certified the document.
Remote or videoconference witnessing is not permitted. The Supreme Court of BC has held that the words “appeared before” require a physical presence before the officer, and not an appearance by means of videoconferencing technology: First Canadian Title Insurance Company v. The Law Society of B.C., 2004 BCSC 197.
On March 24, 2020 the Director of Land Titles published a list of supporting documents for which a true copy can be used instead of the original document, see the full list here.
The Law Society of British Columbia released their response on March 17, 2020. In their response they’re reminding everyone of the methods to verify a client’s identity that do NOT require an in-person meeting with the client. These methods are the dual process method or using information in a client’s credit file.
If you (as the lawyer) decide to use video-conferencing, you will need to demonstrate the following:
satisfaction that the government issued ID is valid and current;
compare the photo in the government issued ID with the client is the same person;
record (with the applicable date) the method used to verify the client’s identification;
treat the transaction as a high risk transaction and continue to monitor the business relationship as a high risk transaction; and
document the efforts that were made to verify the client’s identity in accordance with the existing rules and the reasons why they were unable to verify the client’s identity in accordance with the existing rules.
Alberta
The Law Society of Alberta released FAQs regarding signing documents and client identification and verification. In these FAQs, the Law Society points out that the legislation governing land title transfers does not permit the use of documents that are executed or sworn remotely. Therefore, affidavits sworn over video-conference technology may not be accepted by the Land Titles Office. In addition, the Law Society mentions that the Land Titles Office requires originally executed transfers of land and affidavits.
On March 17, 2020 the Law Society released a response to COVID-19. In the response they’re reminding members that they can use the dual method or information from the client’s credit file to verify the client’s identity without meeting face-to-face, and to consider if relying upon the previous verification by another person (such as a real estate agent) is permitted under the rules.
As a last resort using video-conferencing is permitted if the following is met:
The member can be reasonably satisfied that the government issued identification is valid and current;
The member can compare the image in the government issued identification with the client to be reasonably satisfied that it is the same person;
The member records, with the applicable date, the method by which the member verified the client’s identification;
The member treats the transaction as a high risk transaction and continues to monitor the business relationship as a high risk transaction; and,
The member documents the efforts that were made to verify the client’s identity in accordance with the existing rules and the reasons why the member was unable to verify the client’s identity in accordance with the existing rules.
Saskatchewan
The Registrar of Titles in Saskatchewan released on March 18, 2020, their direction on witnessing documents for submission to the Land Registry.
Under The Land Titles act, 2000 (“LTA, 2000”) while submissions to the Land Registry that require authorizations must have “wet ink” signatures (application of pen to paper) and the witnessing of those signatures, the Land Registry does not require the submission of original documents for registration, instead examining and registering based on scanned images of the original documents.
Consequently, these requirements for registration may be met by following the direction from the Law Society in the Notice. In the case of the Land Registry, this could mean after a client has executed the documents with the lawyer witnessing the execution in the manner directed by the Law Society, the client may email the lawyer a clear image of the signed document, whether by fax, email or photograph. The lawyer may then print out the signed document, append the lawyer’s own signature and scan the authorization for submission to the Land Registry.
The LTA, 2000 authorization requirements applies to transfers, interest assignments, amendments and discharges. Mortgage documents that are submitted to the Land Registry (if agreed to by the parties involved) may be electronically signed and included behind a “Begin Attachment” sheet to the Land Registry.
The Law Society of Saskatchewan posted on March 19, 2020 a reiteration of what they posted on their COVID-19 Client Interaction Consideration page, reminding its members that ISC transfer documents cannot be signed via technology (due to legislation) and ‘in the presence of a lawyer’ means the client is in the physical presence of a lawyer. However, documents requiring the client to sign-in person, does not mean the client and the lawyer have to be in the same room. The following is the suggestion provided by the Law Society to facilitate in-person signing:
“...have the client drive to your office and remain in their vehicle. You attend outside the car and watch them sign the document. Have the client immediately take a photograph of the document on their phone and email it to you right away. The client should then retain the original document until a later time.”
On their COVID-19 Client Interaction Consideration page, they’re recommending the following to be considered when using video-conferencing:
Confirming the client’s consent to proceed using the chosen technology;
Have all individuals introduce themselves;
Ensure no one is with your client who may improperly be influencing him/her;
Make sure audio and video feeds are stable and you can hear all parties;
Where identification is produced to support verification of identity, ensure that a copy of the document is sent to you in advance of the online meeting and that when it is produced that the entire document is visible and legible;
Provide the client with copies of the document executed remotely;
Confirm your client’s understanding about the documents they are executing and provide adequate opportunity for them to ask questions during the video conference; and
Maintain detailed records including date, start and end time, method of communication, identity of all present and minutes of content of the meeting.
Manitoba
On March 20, 2020, Teranet Manitoba temporarily suspended their face-to-face land titles and personal property registry client service. Instead they’re requesting that paper documents and deposit cheques to be mailed to them, read more on their website. As of March 23, Teranet Manitoba announced all mailed documents will be undergoing a three-day quarantine/waiting period before they’re processed. If you have urgent documents to register, contact their customer service at clientservice@teranet.ca or call 1-844-737-5684 (toll free).
In addition, the Registrar-General released a Directive on March 20 that all parties registering land titles documents must use eRegistration with 3 exceptions, read the full Directive here.
In response to COVID-19, the Law Society of Manitoba released FAQs on March 19, 2020. In their FAQs, they are reminding their members that documents to be filed in The Real Property Registry are not permitted to be sworn, affirmed or declared electronically, as per The Manitoba Evidence Act, together with The Real Property Act. NOTE: These FAQs were recently updated in this web page.
The Law Society is reminding its members (in their FAQs) that verifying a client’s identity can be accomplished using the dual process method or using information from the client’s credit file. As well, if applicable relying on a person who is a reporting entity to FINTRAC (such as a real estate agent or mortgagee).
If the earlier mentioned options are not possible, the Law Society of Manitoba will accept the verification of the client’s identity by using video-conference technology. They’ve released the following PDF checklist. As well, they’re asking members to do the following:
You can compare the image in the government issued identification with the client to be reasonably satisfied that it is the same person;
You can be reasonably satisfied that the government issued identification is current and authentic;
You record, with the applicable date, the method by which you verified the client’s identification;
You treat the transaction as a high risk transaction and continue to monitor the business relationship as a high risk transaction;
You document the efforts that were made to verify the client’s identity in accordance with the existing rules and the reasons why you were unable to verify the client’s identity in accordance with the existing rules;
You consider whether there are any red flags associated with fraud or money laundering, attempt to mitigate risk, and determine if you should proceed;
You stay alert to the fact that people may attempt to use situations like COVID-19 as an opportunity to commit fraud or other illegal acts;
You are particularly alert to these red flags to ensure you are not assisting in or being reckless in respect of any illegal activity; and
You document any red flags, what measures you have taken to mitigate that risk, and your decision on how you proceeded
The Law Society is suggesting the following when using video conferencing to provide legal advice or services (when appropriate):
Record the proceeding if possible
Confirm the client’s consent to proceed in this manner
Ask that all individuals in the remote location introduce themselves.
Ensure that there is no one else at the remote location who may be improperly influencing the client.
Make sure that audio and video feeds are stable and that you can hear and see all parties.
Where identification is produced to support verification of identity, ensure that a copy of the document is sent to you in advance of the online meeting and that when it is produced that the entire document is visible and legible.
Determine how to provide the client with copies of the document executed remotely.
Confirm your client’s understanding about the documents they are executing and provide adequate opportunity for them to ask questions during the video conference. If you are reviewing a specific clause, they could initial the clause or they could initial each page to confirm that you have reviewed the document with them.
Maintain detailed records including: date, start and end time, method of communication, identity of all present, and minutes of content of meeting.
Confirm advice, discussions, and/or decisions in writing to the client immediately or shortly after the virtual meeting.
Be sure to preserve the recording of the proceeding.
Ontario
Federation of Ontario Law Associations (FOLA) released a Basic Approach for Remote Signing guide. In addition, they released a statement March 20, 2020 to provide guidance on how to continue closing real estate transactions.
As per the FAQs page the Law Society of Ontario released (and continues to update), the interpretation requiring lawyers and paralegals verify client’s identities face-to-face will not require the lawyer or paralegal to be in the physical presence of the client, instead video conferencing will be allowed as of March 18, 2020. However, lawyers and paralegals need to manage the risks associated with verifying identities using video conferencing technology.
The following should be executed when verifying a client’s identity via video conferencing:
Consider requesting that the client send a high-resolution image of the identification document by secure means in advance of the video conference and asking the client to show the original identification document during the video conference;
Ensure that they are reasonably satisfied that the identification document is valid and current;
Compare the image in the identification document with the client to be reasonably satisfied that it is the same person;
Record, with the applicable date, the method by which the lawyer or paralegal verified the client’s identification; and
Document the efforts that were made to verify the client’s identity in accordance with the existing requirements and the reasons why the lawyer or paralegal was unable to verify the client’s identity in accordance with the existing requirements.
Nova Scotia
In response to COVID-19, the Nova Scotia Barristers’ Society started a FAQs page, that they will continue to update. As of writing this blog entry, witnessing signatures and taking affidavits remotely through video conferencing is acceptable for filing documents with Property Online. After witnessing the client sign over video conferencing technology, he/she can scan the document to you (via a scanner or scan to pdf app on their phone) for you to place your original signature on the document and then submit it to Property Online. The Registrar General of Land Titles sent the following in an email to all POL users to confirm the process:
REGISTRAR GENERAL’S DIRECTIVE (COVID-19/ORIGINAL DOCUMENATION):
This Directive is being issued with respect to the interpretation of the term “original” for the purposes of the Land Registration Administration Regulations. During the period in which the Province of Nova Scotia is asking Nova Scotians to practice social distancing, the Office of the Registrar General will interpret the term to include a document displaying only one “wet” signature. For example, if a client were to execute a document in the lawyer’s presence over skype or a similar application, the client could e-mail that document to the lawyer for printing and the lawyer would then apply his or her “wet” signature.
Documents executed in this fashion will suffice for the purposes of retaining documentation and registering documentation in paper format as required by the Regulations. Our Land Registration Offices have been instructed to receive and process documents containing the “wet” signature of only one individual. You must be satisfied that your client’s “dry” signature was made by your client and you might consider asking them to e-mail you a copy contemporaneously with your conversation to make that confirmation.
In light of COVID-19, the Nova Scotia Barristers’ Society has released the following guide for how to verify client identities on March 17, 2020. In these guidelines, all members are being reminded that there are dual process method and using information from a client’s credit file to verify a client’s identity (without meeting the client face-to-face). As well as, whether or not relying upon a previous verification by another person (such as a real estate agent) is an option depending on the situation.
If there’s no other option but to verify the client’s identity using video conference technology, the NSBS wants the following to be adhered to:
The member can be reasonably satisfied that the government issued identification is valid and current;
The member can compare the image in the government issued identification with the client to be reasonably satisfied that it is the same person;
The member records, with the applicable date, the method by which the member verified the client’s identification;
The member treats the transaction as a high risk transaction and continues to monitor the business relationship as a high risk transaction;
The member documents the efforts that were made to verify the client’s identity in accordance with the existing rules and the reasons why the member was unable to verify the client’s identity in accordance with the existing rules.
The NSBS is providing the following guidance (on their FAQs page) when using video conferencing technology to provide legal advice and/or services:
Confirm the client’s consent to proceed in this manner
Ask that all individuals in the remote location introduce themselves.
Ensure that there is no one else at the remote location who may be improperly influencing the client.
Make sure that audio and video feeds are stable and that you can hear and see all parties.
Where identification is produced to support verification of identity, ensure that a copy of the document is sent to you in advance of the online meeting and that when it is produced that the entire document is visible and legible.
Determine how to provide the client with copies of the document executed remotely.
Confirm your client’s understanding about the documents they are executing and provide adequate opportunity for them to ask questions during the video conference. If you are reviewing a specific clause, they could initial the clause or they could initial each page to confirm that you have reviewed the document with them.
Maintain detailed records including: date, start and end time, method of communication, identity of all present, and minutes of content of meeting
We make every attempt to be accurate and up to date. If there's anything we've missed please let us know.