Client ID Verification in Conveyancing Post-Pandemic
Back in April 2020, we released our LDD Remote Signing Portal. This portal was created at a time when governments and law societies across Canada were creating amendments and new legislation to permit remotely witnessing land title affidavits, verifying client identities virtually (or remotely) and other measures to keep real estate transactions moving forward.
In today’s world, governments are starting to retire their COVID restrictions. Similarly to our past blog post that reviewed the position on remote signing, this one will focus on whether or not the measures have become permanent.
Alberta
The Law Society of Alberta has announced the temporary exception to the client verification requirement, in Rule 119.50, no longer applies. When a lawyer engages in or gives instructions on behalf of an organization involving the receiving, paying or transferring of funds, it is mandatory to conduct client verification using one of the three methods available:
government-issued photo identification method;
credit file method; or
dual process method that allows the lawyer to refer to information from two different, reliable and independent sources that contain:
the individual’s name and address;
the individual’s name and date of birth; or
the individual’s name and confirmation they have a deposit account, credit card or other loan with a financial institution.
However, for the government-issued photo identification method, the lawyer or agent may virtually verify a client’s identity using only the technology products for client identification and verification that have been approved by the Law Society’s Innovation Sandbox.
See the Client Identification and Verification Flowchart and FAQ for more information on obligations applicable to remote legal services.
British Columbia
In BC, their measures related to remote witnessing of affidavits for use in the Land Title Applications are being retired. As per the announcement last month from the Land Title and Survey Authority of British Columbia (LTSA) that effective September 30, 2023, the following COVID-related remote witnessing measures will be retired, in line with the removal of BC-wide COVID restrictions.
This Practice Bulletin enables legal professionals to swear land title affidavits remotely.
Changes to E-filing Directions for Supporting Documents.
This document allows a true copy instead of the original supporting document to be used for e-filing.
Blanket authorization of s. 49 affidavit use due to COVID medical concerns.
The registrar authorized the use of COVID-related s. 49 affidavits, which facilitates the signing of land title instruments without being in the presence of an officer. The reason for the affidavit “It was medically unsafe due to Covid-19” will be removed in myLTSA from the Form Declaration s. 49 Affidavit.
Practitioners can still make a request to the Registrar for the use of a Land Title Act s.49 affidavit related to COVID medical concerns.
The LTSA continues to offer Identity Verification to mitigate fraud risk in situations where remote witnessing and social distancing practices are necessary.
Though unrelated to the retirement of COVID measures, customers are reminded that remote witnessing of Enduring Powers of Attorney, which was made permanent by s.17.1 of the Power of Attorney Act, remain in effect. Read Practice Bulletin 02-11 - Enduring Powers of Attorney for practice guidance regarding land title requirements for enduring powers of attorney that have been remotely witnessed under the alternative witnessing processes and are to be used for land title purposes.
Ontario
The Law Society of Ontario has announced effective January 1, 2024, they will allow virtual verification of client identity where the licensee determines that the client’s government-issued photo identification is authentic.
The temporary pandemic emergency measure of allowing virtual verification without authentication will end on December 31, 2023. For further information, refer to the Law Society of Ontario’s website.
Manitoba
In Manitoba, regulations were announced that establish processes for remote witnessing and commissioning came into effect on September 29, 2021. These regulations amended six statutes to enable alternatives to physical attendance on a permanent basis. These regulations establish processes for the use of videoconferencing as an alternative to in-person attendance when witnessing and commissioning certain legal documents. They include:
Remote Commissioning Regulation under the Manitoba Evidence Act,
Remote Witnessing Regulation under the Powers of Attorney Act,
Remote Witnessing Regulation under the Wills Act,
Remote Witnessing Regulation under the Homesteads Act,
Remote Witnessing Regulation under the Real Property Act, and
Remote Witnessing Regulation under the Health Care Directives Act.
- Previous verification of the ID of the client in person by you or someone else in your office.
- Verification of the ID of the client by an agent. Send off an agent agreement to their real estate agent or banker or accountant or other responsible person who can do the verification for you.
- The credit check method.
- Use two trusted pieces of information from a reliable source.
- New – use a DIACC certified software service that can confirm the authenticity of government photo ID and match the result to the image or video of the client.
Last Updated January 25, 2024
Saskatchewan
The Government of Saskatchewan replaced the temporary emergency regulations related to remote execution of certain documents and wills and replaced those regulations with permanent regulations back in August 2020. The Law Society of Saskatchewan worked closely with the Government of Saskatchewan to update their Practice Directives and forms:
Practice Directive 1 and Declaration in Law Society of Saskatchewan Form PD1
Practice Directive 3 and Form PD3 – Declaration of Lawyer Who Has Witnessed a Will via Electronic Means
Please refer to the Law Society of Saskatchewan’s website for more information.
Nova Scotia
The Nova Scotia Barristers’ Society has issued a list of FAQs. In these the question “Can I get Client Identification and Verification through - remote means?” is answered.
Current requirements:
Because there is no obligation to meet with a client face-to-face to identify the client, keep in mind the distinction between identifying and verifying the identity of a client:
Identifying the client means obtaining certain basic information about your client and any third party directing, instructing or who has the authority to direct or instruct your client, such as a name and address. You must obtain this information whenever you are retained to provide legal services to a client unless an exemption applies. This step can be done over the phone or by video conference. There is no requirement that it be completed face-to-face.
Verifying the identity of a client means looking at an original identifying document from an independent source to ensure that your clients and any third parties are who they say they are. You are only required to verify the identity of your client and such third parties if you are involved in a funds transfer activity, that is, you engage in or instruct with respect to the payment, receipt or transfer of funds, and an exception does not apply.
Verification of client identity occurs face-to-face unless verification is provided by an agent pursuant to an agency agreement between you and the agent.
Part of their answer to the above question includes a list of factors to help manage the risk when using video conferencing to conduct face-to-face verification of client identity instead of being in the physical present of the client or using an agent.
Last Updated January 25, 2024
Coming soon, verify Client IDs with ClientConnect™
With provinces, like Ontario and Alberta adopting the use of technology to verify client ids, we are hard at work bringing ClientConnect™ to market. This new portal will validate client ids, and ultimately, will replace RealtiWeb’s current Remote Signing Portal, incorporating its document sharing and video-conferencing features. Meaning? It will simplify your ID process, while also improving security.
ClientConnect is already at work in the market, at the beta-testing stage. Subscribe for updates!
