( Disponible en anglais seulement )
Although the COVID-19 crisis is having an enormous impact on businesses, commercial activity has not ended. As a result, lawyers continue to work on transactions for our clients, but most are doing so remotely. This new approach to legal work is not without barriers, however, particularly where legislation, regulations and court rules have historically required in-person witnessing of document execution and commissioning of affidavits.
This is not merely an issue for litigators, as there are a variety of provincial requirements for documents for submission to land titles registries, and for independent legal advice (ILAs) and similar requirements. Thus, lawyers involved in lending transactions have also run into obstacles created by social distancing.
This post will summarize emergency measures that have been introduced to relax in-person witnessing requirements in British Columbia, Alberta, Saskatchewan, Ontario and Québec, and how they will apply to commercial lending transactions. We will not address any changes in rules for other types of documents (such as affidavits for filing with courts, or completion of wills).
The modified rules generally come from two or three sources – provincial legislatures, land titles offices and law societies. In each province, even if the legal source of the relaxation is the legislature, one must also check the relevant law society’s requirements, as the law society rules may be the most stringent that apply.
Several of the law societies appear to working together to provide similar guidance, allowing virtual means of identifying clients’ identities, such as by video conference, and permitting virtual commissioning of affidavits and other documents. As part of that guidance, the law societies direct that lawyers turn their minds to ensuring that clients have been properly identified, and are aware of risks associated with remote execution, including:
- Identity theft;
- Undue influence or duress;
- Lack of capacity;
- Leaving the client without copies of the executed documents; and
- Failing to provide the client with an adequate opportunity to ask questions or request clarifying information about the documents they are executing.
Some law societies, including Saskatchewan’s, have directed that a formal declaration be completed by a lawyer who is remotely witnessing execution of a document. Some have set out very specific directives to obtain screen captures showing both the face of the signatory and their photo identification.
Following are summaries for particular provinces, going from west to east:
The Law Society of British Columbia published pandemic related client identification and verification guidance on March 17, 2020:
There are two methods for verifying a client’s identity that do not require a face-to-face meeting with the client – (i) the dual process method, or (ii) using information in a client’s credit file. Lawyers should also consider whether they may be able to rely upon the previous verification by another person (for example, a real estate agent) where permitted under the Rules.
In unique circumstances where lawyers unable to avail themselves of any other verification method, the Law Society will take a reasonable approach in its compliance activity if the lawyer verifies identification of a client located in Canada by using video-conference technology. Lawyers who verify a client’s identification using video conference technology should be able to demonstrate that they:
- are reasonably satisfied that the government issued identification is valid and current;
- were able to compare the image in the government issued identification with the client to be reasonably satisfied that it 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.
Here is a link to B.C.’s Law Society’s guidance which may be updated from time to time.
Very recently, remote witnessing was also approved, to an extent, by the Land Title and Survey Authority of British Columbia (LTSA) for land titles applications in B.C. On March 31, 2020, LTSA started to allow the use of video conferencing if the transferor/signatory somehow cannot be physically present with an officer/witness. In that situation, another person (i.e. the deponent) who is 16 years of age or older and is acquainted with the transferor/signatory can certify the transferor’s signature by swearing an affidavit of execution remotely (following the process of remote witnessing set out in the LTSA Practice Bulletin No. 01-20) with a BC lawyer or BC notary.
One possible approach would be to have the signatory, the deponent and a BC lawyer/notary all join into a video conference, so the deponent can watch the signatory signing on the instrument remotely and the deponent then swears an affidavit of execution while the lawyer/notary is watching on the computer screen. Another way is to ask someone who lives in the same house of the signatory (who is 16 years old or older) to witness the signatory’s signature in-person, and then the witness/deponent swears an affidavit remotely through a video conference with a BC lawyer/notary. The drafter of the affidavit (the BC lawyer or notary) will need to ensure the content of the affidavit sworn accurately reflects the situation and all applicable LTSA requirements.
For in-person signings, the LTSA is also permitting counterpart execution, such that different parties who ordinarily would need to sign on the same piece of paper may sign separately, but the execution and witnessing must be contemporaneous.
B.C. does not have legislated ILA requirements specific to lending transactions, so the B.C. measures relate, for our purposes, mainly to execution and witnessing of Land Titles documents.
In response to social distancing measures to reduce the spread of COVID-19, the Law Society of Alberta and the Government of Alberta have enacted some temporary measures to address certain key issues that impact the day-to-day operations of business law transactions.
The Minister of Justice and Social General issued a Ministerial Order 27/2020 to suspend limitation periods from March 17, 2020 to June 1, 2020, on a number of enactments, including Part 5 (Rights and Remedies on Default) of the Personal Property Security Act (Alberta).
Alberta is now also temporarily permitting the Alberta Land Titles Registry to register documents that have been witnessed, sworn or affirmed by active, practicing and insured Alberta lawyers through two-way videoconferencing. All documents submitted for registration (such as mortgages, caveats, etc.) must have original signatures and Alberta lawyers are still subject to the Law Society of Alberta’s client identification and verifications rules. All original documents must still be physically submitted for registration at Land Titles, though modifications have been made to drop off and pick up procedures to reduce exposure risk. Electronic submission has not been made available to date. Documents are to be placed in the after-hours drop off box and Land Titles staff will retrieve documents throughout the day.
Other than the above, no temporary measures have yet been released on virtual commissioning of affidavits outside the court process nor as it relates to ILA requirements under the Guarantees Acknowledgment Act (Alberta) for personal guarantors. The Government of Alberta has, however, noted these items as currently under consideration.
As noted above, client verification and identification rules must still be complied with in Alberta and the rules already provide a few methods to satisfy the requirements without face-to-face interaction with clients (the dual process method, using information from the client’s credit file, or another firm member has previously verified the client). As a last resort, if the aforementioned methods will not work, the client’s identify may be verified through videoconferencing, provided that the lawyer meets requirements similar to the bullet-point items set out in the section above for B.C.
On March 26, 2020, the Saskatchewan Government enacted several emergency regulations to facilitate execution of documents for registration with Saskatchewan’s Land Titles, and to provide flexibility for remote witnessing of other documents. Key transactional documents can be completed in Saskatchewan without any in-person physical presence being required.
Saskatchewan probably has more requirements for ILAs than most provinces, particularly in the farm context. The Saskatchewan Farm Security Act (SFSA) requires an Acknowledgement of Guarantee, effectively an ILA in respect of any guarantee of farm debt, voiding any guarantee where the Acknowledgement is not completed. As well, certain SFSA provisions concerning enforcement may be waived by a corporate debtor but only if an ILA is done. And there are exemptions from seizure, even where the creditor holds security. Those exemptions may be waived, but in some circumstances ILA must be obtained for that waiver to be effective.
The emergency regulations passed on March 26, 2020 appear to be effective in creating greater flexibility for how ILAs can be done in a safe manner during the current crisis, though the flexibility appears to be available only for lawyers and not for a notary public who is not a lawyer. In brief, the regulations provide that electronic witnessing by a lawyer can satisfy the applicable requirements for a document that would normally contain the words “while in the presence of” or “before me”. That measure appears in the Electronic Information and Documents Regulation but is applicable only during the declaration of an emergency.
The second measure relates to documents signed for registration at Land Titles. It has long been the rule that where a Saskatchewan lawyer witnesses a signature, no affidavit of execution is required. As well, virtually all submissions to the Registry are done electronically, with originals being retained by the lawyer. However, witnessing has historically been required to occur in person. New Land Titles regulations provide that during an emergency period Saskatchewan lawyers may witness the execution of Land Titles via electronic means, provided that signing and identification of the signatory occurs during a single session and the signatory immediately transmits the signed document to the lawyer, who must sign as witness and immediately transmit the completed document back to the party signing. A Certificate of Lawyer must be completed in prescribed form and included with the submission to Land Titles for registration.
It appears that the Electronic Information and Documents Regulations will also create the flexibility to commission affidavits remotely that are required to support applications to Land Titles, such as to verify corporate signing authority where no corporate seal is applied.
The Law Society of Saskatchewan has published the following practice directive concerning remote execution of documents during public emergency periods, and it should be consulted and followed by any solicitors seeking to rely on remote witnessing. That same page contains links to the new regulations and to the guidance from the Registrar of Titles. The Saskatchewan Law Society’s guidance is similar to that in B.C. and Alberta, but a Saskatchewan lawyer witnessing remotely must also complete a declaration in a prescribed form that must be retained on file.
Unlike some other provinces, Ontario does not have a Guarantees Acknowledgment Act or similar legislation requiring that guarantees be executed in the presence of a lawyer. Having said that, it is prudent for a lender to require ILA for all individual guarantors which requires a lawyer to verify the identity of the individual guarantor.
In light of COVID-19, the Law Society of Ontario has issued an advisory in connection with verifying a client’s identity which notes that they will interpret the requirement that lawyers and paralegals verify the identity of their client face-to-face as not requiring the lawyer or paralegal to be in the physical presence of the client. Rather, alternative means of verification such as face-to-face verification via video conference will be permitted. When conducting a video conference to verify a client’s identity, lawyers and paralegals are directed to consider matters such as those set out for B.C. above.
While video conferencing may be used as an alternative means of commissioning or verifying that a signature or mark on a document was signed or marked by your client, video conferencing cannot be used to notarize original documents. If the certificate of independent legal advice is required to be notarized it can be physically delivered to the lawyer’s office and they can review the documentation before couriering the notarized certificate of independent legal advice back to the client.
Here is a link to the Law Society of Ontario’s COVID guidance.
In Québec, notaries are public officers and legal advisers responsible for executing many formal documents used in commercial lending transactions, including immovable hypothecs (mortgages) and certain other real estate documents that require the form of notarial act en minute.
Québec notaries not only witness the signature of such documents, they are party to notarial acts en minute that they endow with the authenticity of acts of public authority. They must ascertain the capacity, consent and identity of the parties and provide such acts with a fixed date. They keep the only original in their notarial records and issue certified copies or extracts of them.
On March 27, 2020, exceptional and temporary measures were introduced by the Government of Québec by way of a Decree that permits notaries to remotely execute notarial acts en minute using technology and electronic signatures. Such acts are referred to as technology-based notarial acts.
Notaries and the other parties to a technology-based notarial act must be able to see and hear each other at all times during this process and they must also be able to see the relevant documents. The integrity and confidentiality of the technology-based notarial act and the process leading to the signing of the act is under the professional responsibility of notaries and they are required to maintain the integrity of the act throughout its life cycle in order to ensure its conservation. Therefore, only particular software approved by the Chambre des notaires du Québec may be used for the execution of technology-based notarial acts.
Notaries can issue electronic certified copies of technology-based notarial acts, which can be used for online registration at the Québec Land register. It is important to note that printing an electronic copy of a technology-based notarial act will void its authentic nature.
Here is a link to the Guidance from the Chambre des notaires du Québec .