Updated: May 5, 2020
In Part 1 of our "New Normal" series, we have condensed and consolidated information and resources that have become necessary to the general practice of law in light of COVID-19. We've broken Part 1 down into the following sections:
a. Client Identification and Verification
b. Use of Video Technology to Identify and Verify a Client's Identity
c. Land Title Offices and the Land Title Services Authority of British Columbia
d. Electronic Signatures
e. Law Society of British Columbia Best Practices for Video Technology
f. Suspension Period
The information and resources below are accurate as of May 5, 2020.
A lawyer who is retained by a client (individual) to provide legal services must obtain and record, with the applicable date: (a) the client's full name; (b) the client's home address, home telephone number, and occupation; and (c) the address and telephone number of the client's place of work or employment, if applicable (Law Society Rules, Rule 3-100(1)(b)).
A lawyer must verify a client's (individual's) identity when the lawyer provides legal services in respect of a financial transaction by way of one of the following methods (Law Society Rules, Rule 3-102):
IN-PERSON (Law Society Rules, Rule 3-102(2)(a)(i))
(i) an identification document issued by the government of Canada, a province or territory or a foreign government, other than a municipal government, that:
A. contains the individual's name and photograph; and
B. is used in the physical presence of the client to verify that the name and photograph are those of the client. (Rule 3-102(2)(a)(i))
Examples: Driver's Licence, Personal Health Card, Passport
CREDIT INFORMATION (Law Society Rules, Rule 3-102(2)(a)(ii))
(ii) information in the individual's credit file that is used to verify that the name, address, and date of birth in the credit file are those of the individual, if that file is located in Canada and has been in existence for at least three years, or
Examples: Equifax, TransUnion
DUAL PROCESS METHOD (Law Society Rules, Rule 3-102(2)(a)(iii))
(iii) any TWO of the following with respect to the individual (the "Dual Process Method"):
A. information from a reliable source that contains the individual's name and address that is used to verify that the name and address are of those of the individual (Example: BC Hydro Bill);
B. information from a reliable source that contains the individual's name and date of birth that is used to verify that the name and date of birth are those of the individual (Example: Birth Certificate);
C. information that contains the individual's name and confirms that the individual has a deposit account or a credit card or other loan amount with a financial institution that is used to verify that information (Example: Bank Records, Visa Statement).
Note: when using the Dual Process Method above, the information sources must be different sources (Rule 3-102(4)).
Note: an electronic image of a document is not a document or information for the purposes of this rule (Rule 3-102(3)).
As per the Law Society of British Columbia's Law Society's COVID-19 response, Notice to the Profession on Client Identification and Verification to Address COVID-19, dated March 17, 2020:
Where the client is in Canada:
A lawyer may verify the identity of a client by way of video conference technology only if:
(i) the lawyer is unable to avail themselves of any other verification method; and
(ii) the client is located in Canada.
If a lawyer verifies the client's identity by way of video conference technology, they must:
(i) keep records and treat the file as a high-risk transaction; and
(ii) document the efforts made to verify identity per existing rules and reasons why the lawyer was unable to abide by the existing rules.
Where the client is outside Canada:
A lawyer must:
(i) use an agent to verify the client's identity (Rule 3-104(5));
(ii) have an agency agreement with the agent;
(iii) obtain attestation from the agent who has reviewed the documents in the physical presence of the client.
A lawyer CANNOT verify a client's identity via video technology when the client is outside Canada, but the Law Society of British Columbia has not prohibited the agent who is engaged by the lawyer from using video technology.
As of March 19, 2020, the Front Counter Services of the LTSA were closed (Service Notice: Restricted Access to Land Title Offices Starting March 19, 2020).
Effective March 19, 2020, e-filing must be employed for:
· transmitting an interest to a personal representative; and
· transmitting a fee simple interest to a surviving joint tenant.
As per the LTSA's Update on Requirements for Original Supporting Documents During the COVID-19 Situation, dated March 26, 2020, the LTSA will now accept true copies of the following (instead of originals):
- certificates from Vital Statistics, such as:
- death certificates;
- marriage certificates;
- change of name certificates;
- court certified documents, such as:
- certificates of judgement; and
- certificates of pending litigation.
Note that the definition of "true copy" in the Land Title Act changed in November 2019 - in the context of supporting documents, the "true copy" is an exact copy of the original document.
To remote witness affidavits for Land Title Applications, follow the LTSA's Practice Bulletin No. 01-20:
1. Incorporate a statement into the jurat that confirms:
a. the deponent was not physically present but linked by video technology;
b. the procedure described in Practice Bulletin No. 01-20 was followed; and
c. the procedure complied with the Law Society of British Columbia's best practices for using video technology.
2. The deponent must show the lawyer the front and back of the deponent's government issued photo identification, and the lawyer must take a screenshot of the front and back of the same.
3. The lawyer and deponent must have a copy of the affidavit, including exhibits, in front of them while connecting by video technology.
4. The lawyer and deponent review each page of the affidavit (and exhibits) to confirm their respective copies are identical, initialing each page of the affidavit and exhibits once so confirmed.
5. The lawyer administers the oath and the deponent must angle their camera so that lawyer witnesses the deponent signing their name to the affidavit.
6. The deponent sends a copy of the signed affidavit, including exhibits, to the lawyer via electronic means.
7. Upon receipt of the copy of the affidavit signed by the deponent, the lawyer compares their initialed copy of the affidavit with the signed affidavit of the deponent to confirm that the two copies, which were reviewed via videoconference, are identical. The lawyer may then affix their name to the jurat.
8. Both copies (the deponent's sworn (or affirmed) copy AND the lawyer's initialed and signed copy) must be submitted to the LTSA, along with an LTSA Declaration Form.
Certificates of Pending Litigation ("CPL")
As of April 21, 2020, with the consent of the Supreme Court of British Columbia and the Land Title Services Authority of British Columbia, the following exempted documents under Rule 23-3(5) of the Supreme Court Civil Rules may be transmitted electronically:
- certificates of pending litigation;
- certificates of judgement; and
- certificate of commencement of proceedings.
Section 2 of the Electronic Transactions Act permits electronic signatures where a signature is required in person, except for:
- wills (section 2(4)(a));
- trusts created by wills (section 2(4)(b));
- powers of attorney, to the extent that they concern the financial affairs or personal care of an individual (section 2(4)(c));
- documents that create or transfer interests in land and that require registration to be effective against third parties (section 2(4)(d)); or
- other provisions, requirements, information or records prescribed in the regulations (section 2(4)(e)).
The Law Society of British Columbia has compiled a list of recommendations for best practices when using video technology in Video Conferencing Technology Information, some of which include:
- advise the client not to share the link to use the video technology with others;
- confirm that the client consents to the use of video technology;
- ask all individuals participating in the video conference to introduce themselves;
- ensure no other person is present who may be improperly influencing the client;
- ensure video and audio are stable and that communications are clear;
- manage screen sharing;
- ask for identification to be produced prior to the video conference and review the same; during the meeting, confirm that the same identification is produced;
- determine how the clients will receive and/or print the documents to be executed;
- confirm that your client understands the documents they are executing and invite them to ask any questions they may have prior to execution;
- maintain detailed records, including: date, start and end time, method of communication, identity of all present, and minutes of the content of the meeting.
As per the Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings, COVID-19: Suspension of Regular Court Operations, by direction of Chief Justice Christopher E. Hinkson, revised April 16, 2020:
SUSPENSION OF REGULAR COURT OPERATIONS
"Effective March 19, 2020 and until further notice, the Honourable Chief Justice Hinkson has suspended regular operations of the Supreme Court of British Columbia at all of its locations to protect the health and safety of court users and to help contains the spread of COVID-19" (at page 1).
FILING AND SERVICE DEADLINES
"Effective March 18, 2020, filing and service deadlines under the Supreme Court Civil Rules and Supreme Court Family Rules are suspended until May 29, 2020, following which they will begin to run again" (at page 5).
ADJOURNMENT OF CIVIL AND FAMILY MATTERS
"All civil and family matters scheduled for hearing between March 19, 2020 and May 29, 2020 are adjourned, unless the Court otherwise directs. This automatic adjournment extends to all trials, conferences, and chambers applications or other hearings currently scheduled for hearing on or before May 29, 2020" (at page 1).
"Effective March 26, 2020, the Minister of Public Safety and Solicitor General suspended limitation periods and mandatory time periods for the commencement of a civil or family proceeding" (at page 6).
"Effective April 15, 2020, Ministerial Order No. MO86 was repealed and replaced by Ministerial Order No. MO98, which suspends limitation periods and mandatory time periods for the commencement of a civil or family proceeding, except those established under the Builders Lien Act and Division 5 of Part 5 of the Strata Property Act" (at page 6).
"Once this suspension is lifted, more directions will be provided by the Court" (at page 6).