First Canadian Title Company Limited v. The Law Society of British Columbia
Lawyers may not witness signatures via video conference: BCSC
In February the BC Supreme Court dismissed the petition of First Canadian Title Company Ltd. and approved the opinion of the Law Society Ethics Committee that the requirements for a lawyer to witness a document as an officer under the Land Title Act cannot be met by interactive videoconferencing: see First Van Title Co. v. Law Society of BC, 2004 BCSC 197.
In 1999 First Canadian Title launched a program with certain mortgage lenders in BC that permitted borrowers to sign mortgage documents in the offices of those lenders. A lawyer retained by First Canadian Title witnessed and certified the mortgage instruments via a live interactive videoconferencing link, instead of being physically present in the offices of the lenders. On March 2, 2000, at the request of First Canadian Title, the Ethics Committee met to consider whether a lawyer in BC could properly witness a document via live interactive videoconferencing.
The Committee took note of the fact that, in 1996, it had identified the minimum obligations of a lawyer acting as a witness under section 43 of the Land Title Act and under the Professional Conduct Handbook as being:
- to identify himself or herself as a lawyer;
- to verify the identity of the borrower in accordance with section 43 of the Land Title Act; and
- to advise the borrower that the lawyer is not protecting the borrower's interests.
In considering the issue of a lawyer witnessing a signature via live videoconferencing, the Ethics Committee issued an opinion that certain of the witnessing requirements could not be met:
- A lawyer cannot know what document the signer is signing and cannot know for certain that the paper the lawyer must sign was the paper signed by the person who executed the document;
- Off-screen influences and the lack of proximity may detract from the lawyer's ability to verify the identity of the person who signed the document.
The Committee concluded that the words "appeared before" in section 43 of the Land Title Act require an actual physical appearance before the officer, and not an appearance by means of videoconferencing technology.
As a consequence, First Canadian Title voluntarily suspended the practice of witnessing documents via interactive videoconferencing in 2000 pending the outcome its petition.
In dismissing the petition, the court approved the opinion of the Ethics Committee. The court also agreed with the position of counsel for the Attorney General that permitting documents to be executed at one location and sent to another location for completion by a witness would provide increased opportunities for fraud and would therefore increase the exposure of the Land Title Assurance Fund to claims. It was the position of the Attorney General that such a change should only be adopted after full consultation with all affected parties.