42 Witnessing And Execution

FORMS

Officer Certification

In accordance with the Director’s Requirements for Hardcopy Land Title Forms (DR 04-11) (at https://ltsa.ca/dr_04-11_hardcopy_land_title_forms), any forms requiring an officer as a witness, not specifically included in director’s directions and approved by the registrar for application, must be modified to the extent necessary to accommodate the execution and officer certification by striking out “SIGNED IN THE PRESENCE OF” and substituting “OFFICER CERTIFICATION”, and by adding the following immediately below the signatures of the executing parties and the witness:

• Officer Certification: Your signature constitutes a representation that you are a solicitor, notary public or other person authorized by the Evidence Act, R.S.B.C. 1996, c. 124, to take affidavits for use in British Columbia and certifies the matters set out in Part 5 of the Land Title Act as they pertain to the execution of this instrument.

Failure to include the officer certification statement is grounds for rejection.

Officer Certification for Other Instruments Not Required to Be in Prescribed Form

The Director’s Requirements for Hardcopy Land Title Forms (DR 04-11) (at https://ltsa.ca/dr_04-11_hardcopy_land_title_forms) provide that any other instrument that must be witnessed under Part 5 of the Act, but that is not required to be in a form prescribed under the Act, must, where the witness is an officer, contain the officer certification statement set out in the above example, and the witness must sign the instrument under a column headed “Officer Signature(s)” in the same manner as required in Item 7 of Form A.

Exception for Form 22: Application for Duplicate Indefeasible Title

Form 22 does not require an officer’s certification.

Instrument Requiring Affidavit of Execution

The Director’s Requirements for Hardcopy Land Title Forms (DR 04-11) (at https://ltsa.ca/dr_04-11_hardcopy_land_title_forms) provide that, where an officer does not witness an instrument, the applicant must enter the words “see affidavit of execution” in the officer signature column and attach an affidavit of execution to the instrument.

For requirements for affidavits for use with the Electronic Filing System (“EFS”), see the Land Title Web Filing Form Practice Guides (at https://help.ltsa.ca/myltsa-enterprise/land-title-web-filing-form-practice-guides). The examples are also reproduced under the “Preferred forms of affidavit” heading for s. 49 of the Act.

PRACTICE

Scheme of Officer Certification

The Act requires all transferor signatures to be certified by an officer, who is a person authorized by the Evidence Act, R.S.B.C. 1996, c. 124 to take affidavits. Certification by an officer operates to verify the signature and identity of the transferor. No officer certification is required for a Crown grant, order in council, court order, or other instrument prescribed for the purposes of s. 42(2).

Officer Must Be Person Authorized by Evidence Act to Take Affidavits

Registrar Has Discretion to Request Proof

The person who signs as an officer must be an officer before whom an affidavit may be sworn under the Evidence Act. If the officer is one who on the face of the document complies generally with the Evidence Act, the registrar does not request proof of officer identification and capacity. The registrar may, however, request proof where the authority of the officer is questionable.

Commissioners Acting as Officers

“The Attorney General may appoint, by order, commissioners for taking affidavits for British Columbia”. See s. 56(1) of the Evidence Act.

Officer Certification Made Out of British Columbia

A person who gives an officer certification outside the province must be a person who is authorized by British Columbia law and by the law of that person’s jurisdiction to take affidavits for use within British Columbia. Where an out-of-country or out-of-province commissioner makes the officer certification, the registrar may require proof that the commissioner is acting as a commissioner authorized to administer oaths in the courts of justice of that country or province. For authority, see s. 63(a) of the Evidence Act.

Use of Seal by Foreign Notary

If a notary is acting as an officer, as opposed to taking an affidavit, the notary does not need to use a notarial seal.

Officer Must State Professional Capacity and Address

The officer must state their professional capacity and address. If the officer’s name, address, and capacity does not appear typed or printed below their signature, the registrar rejects the document. The professional capacity of the officer must meet the requirements of the Evidence Act. The registrar has the power under s. 150 of the Land Title Act to require this information.

Impression of Signatures and Use of Rubber Stamps

Documents submitted for registration must be capable of being microfilmed or scanned. Use of an ink other than black or dark blue may result in rejection if the land title office’s image processor will not reproduce the data. Consequently, signatures in dark ink are preferred. An officer may hand print or use a rubber stamp showing professional capacity and address, but rubber stamps should use a dark blue or black inkstamp. An inkstamp with characters of 10–12 pitch, but not smaller than 12 point, is acceptable. When sending transfer forms out of province for execution, encourage the use of dark ink to avoid the possibility of rejection.

Variation of Wills

A consent document under s. 12 of the Wills Variation Act, R.S.B.C. 1996, c. 490 is not an “instrument” as defined in the Land Title Act. (The Wills Variation Act was repealed on March 31, 2014, and its provisions were substantially carried forward into Part 4, Division 6 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13.) Accordingly, Part 5 of the Act does not apply, and the signature of a consenting person does not need to be witnessed by an officer or be proven by affidavit of witness. However, the registrar prefers that the consent be witnessed by a neutral party whose name, address, and occupation appear below the witness signature. See chapter 64 (Trustees, Personal Representatives, and Trustees in Bankruptcy) regarding the Wills, Estates and Succession Act.

Electronic Submissions

On the Declaration form, enter a description of the attached document and attach an image of the originally signed consent witnessed by a neutral party.

The electronic Declaration with the image attached is submitted immediately following the document it supports. The Electronic Filing System appends the Declaration to the document it follows.

See also the “Consents” practice under s. 155 of the Wills, Estates and Succession Act at “Wills, Estates and Succession Act, S.B.C. 2009, c. 13” in chapter 64 for suggested forms of declaration that may be used by applicants to cover the consent matters noted in s. 155.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Evidence Act

See generally ss. 56 to 69 of the Evidence Act regarding who may take affidavits. Note, in particular, s. 60 of the Act, which provides that certain persons are, because of their office or employment, commissioners for taking affidavits for British Columbia.

• Commissioners because of office or employment
• 60 The following persons are, because of their office or employment, commissioners for taking affidavits for British Columbia:

• (a) a judge of a court in British Columbia;
• (b) justices;
• (c) registrars, deputy registrars, district registrars and deputy district registrars of the Supreme Court;
• (d) practising lawyers as defined in section 1(1) of the Legal Profession Act;
• (e) notaries public;
• (f) the local government corporate officer and that person’s deputy;
• (g) [repealed]
• (h) the secretary treasurer of a board of school trustees;
• (h.1) the directeur général of a francophone education authority as defined in the School Act;
• (i) coroners;
• (j) government agents and deputy government agents;
• (k) [repealed]
• (l) other classes of office holder or employment the Attorney General prescribes.

1979-116-67; 1980-1-9; 1982-46-18; 1983-10-23; 1987-25-102; 1987-42-20; 1989-61-200; 1989-40-88; 1998-34-248; 1999-6-11, effective October 15, 1999 (B.C. Reg. 288/99); 2000-7-191; 2003-52-59, effective January 1, 2004 (B.C. Reg. 465/2003); 2007-16-39, effective July 1, 2007 (B.C. Reg, 194/2007).

Note that s. 60(k) of the Act was repealed by s. 11 of the Attorney General Statutes Amendment Act, 1999, in force October 15, 1999, by B.C. Reg. 288/99. Consequently, a provincial or municipal constable holding a rank of sergeant or higher is no longer authorized under this section to take an affidavit for land title purposes.

Section 63 of the Act defines who may swear affidavits outside British Columbia and what effect those affidavits have within the province.

• Affidavits sworn out of British Columbia for use in British Columbia
• 63 Oaths, affidavits, affirmations or statutory declarations administered, sworn, affirmed or made in any other province or any country other than Canada before

• (a) a magistrate or an officer of a court of justice, a judge or a commissioner authorized to administer oaths in the courts of justice of that province or country, as the case may be,
• (b) the mayor or chief magistrate of any city, borough or town corporate, certified under the seal of the city, borough or town corporate, as the case may be,
• (c) an officer of any of Her Majesty’s diplomatic or consular services exercising the officer’s functions in any country other than Canada, including an ambassador, envoy, minister, chargé d’affaires, counsellor, secretary, attaché, consul general, consul, vice consul, proconsul, consular agent, acting consul general, acting consul, acting vice consul and acting consular agent,
• (d) an officer of the Canadian diplomatic and consular service exercising the officer’s functions in any country other than Canada, including, in addition to the diplomatic and consular officers under paragraph (c), a high commissioner, permanent delegate, acting high commissioner, acting permanent delegate, counsellor and secretary,
• (e) a Canadian government trade commissioner or an assistant Canadian government trade commissioner exercising his or her functions in any country other than Canada,
• (f) a notary public acting in the territorial limits of the notary’s authority, certified under the notary’s hand and official seal, or
• (g) a commissioner authorized by the laws of British Columbia to take affidavits,

• are as valid and effectual, and have the same force and effect as if the oath, affidavit, affirmation or statutory declaration had been administered, sworn, affirmed or made in British Columbia before a commissioner for taking affidavits or other competent authority of the same nature.

1979-116-70.

Section 64 of the Act defines the powers of officers in the military for the purpose of taking affidavits either within or outside British Columbia for use in British Columbia.

• Commissioned officers empowered to administer oaths
• 64 All commissioned officers of Her Majesty’s naval, military and air forces of Canada on active service in or out of Canada and all Agents General for British Columbia are empowered to administer oaths and take and receive affidavits, declarations and affirmations in or out of British Columbia for use in British Columbia.

1979-116-71; 1990-21-10.

Section 65 deals with the admissibility and validity of documents that bear the signature or seal of a person designated as a commissioner for taking affidavits under the Act.

• Admissibility of documents attesting to affidavits having been sworn
• 65 (1) A document purporting to have affixed, impressed or subscribed on it or to it

• (a) the signature of
  • (i) a commissioner for taking affidavits for British Columbia,
  • (ii) a commissioner for taking affidavits within British Columbia,
  • (iii) a special commissioner for taking affidavits within British Columbia,
  • (iv) a commissioner for taking affidavits in and for the courts of British Columbia, or
  • (v) a person designated in section 63(a) or section 64, or
• (b) a seal designated in section 63(b) together with the signature of the mayor or chief magistrate of the city, borough or town corporate, or
• (c) the seal, if any, and signature of any other person designated in section 63,

• in testimony of an oath, affidavit, affirmation or declaration having been administered, sworn, made or affirmed by or before him or her, is as valid and effectual as if effected in British Columbia before a commissioner appointed under section 56, and must be admitted in evidence without proof of the signature or, as the case may be, seal and signature, or of the official position of the person.
• (2) Subsection (1) applies even though the person whose signature is subscribed in testimony of an affidavit having been sworn is the solicitor or the partner, associate, agent or clerk of the solicitor for the deponent or for the party on whose behalf the affidavit is to be used, and a provision of a statute, rule or regulation inconsistent with this subsection is inoperative.

1979-116-72.

Capacity of Minors

See the Age of Majority Act, R.S.B.C. 1996, c. 7.

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 1, §8:65.

CASE LAW

Errors in Form

The lawyer who witnessed the signature of the mortgagor to a mortgage inadvertently wrote the client’s name rather than his own under the words “Officer Signature”. The mortgage was registered and the funds advanced. The mortgagors later alleged that the mortgage was invalid and/or unregistrable because of the witnessing irregularity. Section 42(1) of the Land Title Act requires that the execution of an instrument be witnessed by an officer who is not a party to it. The lawyer fulfilled this requirement. Whether he wrote his own name, an “X”, or some other name, it could not be said that he did not witness the execution of the document. Mechanical errors or errors of form should not be allowed to undermine the registration, the binding effect, or the validity “for all purposes” of an instrument that the registrar considers legally binding (Hongkong Bank of Canada v. Upright Developments, 1991 CanLII 993 (BC SC)).

Unqualified Officers

A purchaser under a contract of purchase and sale brought an action against the vendors for recovery of deposit money, alleging that the vendors breached the contract by failing to provide executed copies of the Form A, Freehold Transfer, in registrable form. The vendors, who resided in London, England, counterclaimed for specific performance. The vendors had executed the transfer form in England, but their signatures were witnessed by an American attorney who did not qualify as an “officer” as defined by the operation of ss. 41 and 42(3) of the Land Title Act and s. 63 of the Evidence Act. Both by agreement and by practice, the parties had arranged that the purchaser would prepare and lodge the transfer for registration. Consequently, it was primarily the purchaser’s responsibility to ensure a proper transfer in registrable form was prepared for execution. Instead, the transfer contained an attestation clause suitable for executions within the province, but not without; it did not indicate who would be qualified to witness the signatures outside the province, despite the fact that it was known where the vendors resided and would likely execute the document. The purchaser could not rely on the defect in the transfer to avoid her obligation to complete the purchase. Upon discovering it, she was duty bound to take the necessary steps to correct the defect and to lodge the transfer for registration. Specific performance was granted (MacDonald v. Vandiver, 1995 CanLII 1189 (BC SC)).

Validity of Improperly Executed Instrument

The petitioner, a law corporation, sought an order nisi of foreclosure on a mortgage granted by the respondent to secure payment of the petitioner’s fees for representing the respondent at a trial. Mr. D., the lawyer who represented the respondent at the trial, was the sole shareholder and director of the law corporation. Mr. D. also witnessed the respondent’s signature on the mortgage. At trial, the court dismissed the law corporation’s petition and granted an order discharging the mortgage relying on both s. 84 of the Legal Profession Act, S.B.C. 1998, c. 9 and s. 42(1) of the Land Title Act, which states that the execution by a transferor of an instrument must be witnessed by an officer who is not a party to the instrument. The Court of Appeal found that the mortgage did not become invalid as between the parties to it because of a deficiency in its execution. Section 42(1) of the Act does not in and of itself affect the validity of a mortgage.

Rather, the point of s. 42(1) is to assist in ensuring that instruments that are presented for registration are indeed the instruments of the persons who executed them. Accordingly, the Court of Appeal set aside the order discharging the mortgage and remitted the matter back to the trial court to consider evidence about any equitable issues that might have arisen as between the mortgagor and the mortgagee (Daroux Law Corp. v. Jennings, 2004 BCSC 1442, appeal allowed 2005 BCCA 229).