43 Witnessing—individuals

FORMS

Execution Item

The following points of practice apply to the execution item in Transfer Forms A, B, C, and D:

If there is insufficient space on an electronic form, enter this information on the electronic Form D Executions Continued. The name of the party executing Forms A, B, C, or D must be entered in the execution portion of the form, in order to confirm that the party executed the form. The name, address and capacity of the officer must also be entered in the execution portion of the form in order to confirm that the officer witnessed the party’s signature. See the Land Title Web Filing Form Practice Guides (at https://help.ltsa.ca/myltsa-enterprise/land-title-web-filing-form-practice-guides) and s. 150 of the Act.

Forms of Officer Certification for Individual Transferors

EXAMPLE : More than One Transferor

PRACTICE

Scheme of Officer Certification

This section contains the basic scheme of officer certification. Where an officer certifies a transferor’s signature, the officer’s signature constitutes a certification that:

1. the transferor appeared before the officer and acknowledged that they are the person named in the instrument as transferor; and
2. the signature certified by the officer is the signature of the person who made the acknowledgment.

“Signature of the Officer” and “Certification of the Officer”

An officer’s signature in the execution item indicates that the officer is certifying matters specified in Part 5 of the Act. The effect of the officer’s signature in the execution item is to give officer certification to execution of the instrument.

CASE LAW

The petitioner sought a declaration that the requirements for the witnessing of an instrument set out in ss. 42, 43, and 44 of the Act could be met through the use of interactive videoconferencing. The petitioner was in the business of issuing title insurance policies to lending institutions. In November 1999, the petitioner started a program with certain lenders that permitted borrowers to sign mortgage documents in the offices of the lenders, while a lawyer retained by the petitioner witnessed and certified the documents via live interactive videoconference instead of being physically present. In March 2000, the petitioner asked the Ethics Committee of the Law Society of British Columbia to consider whether a lawyer could properly witness a document in this way. The Ethics Committee concluded that the words “appeared before” in s. 43 of the Act required an actual physical appearance before the officer. The petitioner then voluntarily suspended the videoconferencing practice pending the outcome of this petition. In dismissing the petition and upholding the ruling of the law society, the court found that, given the conclusive effect of registration under the Act and the importance of preserving the integrity of the register, any changes in formalities surrounding the execution of instruments must be carefully scrutinized and fully understood before their endorsement. To permit documents executed at one location to be sent to another location for completion would provide increased opportunities for fraud and would therefore have the effect of increasing the exposure of the Land Title Assurance Fund to claims by the victims of fraud. Furthermore, the use of such a program would be contrary to the best interests of the public and the legal profession and could harm the standing of the legal profession (First Canadian Title Co. v. Law Society of British Columbia, 2004 BCSC 197).

See also the case annotation of Engman v. Canfield, 2023 BCCA 56 under “42 Witnessing and execution” in this chapter regarding an unsuccessful negligence action against a notary who witnessed a Form A transfer.