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1998/99 Legislative Session: 3rd Session, 36th Parliament

THIRD READING

The following electronic version is for informational

purposes only.

The printed version remains the official version.

Certified correct as passed Third Reading on the 13th day of July, 1999

Ian D. Izard, Law Clerk

HONOURABLE UJJAL DOSANJH

ATTORNEY GENERAL AND MINISTER RESPONSIBLE FOR

MULTICULTURALISM, HUMAN RIGHTS AND IMMIGRATION

BILL 93 – 1999

LAND TITLE AMENDMENT ACT, 1999

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the

Province of British Columbia, enacts as follows:

Section 153 of the Land Title Act, R.S.B.C. 1996, c. 250, is amended

(

a) in subsection (1) by striking out "write or stamp"

and substituting "endorse" , and

(

b) by repealing subsection (2) and substituting the following:

(2) For the purposes of priority between purchasers, transferees,

mortgagees and others, and for all purposes of this Act, the day and hour endorsed under

subsection (1) is deemed to be the time at which the application was received by the

registrar, and the endorsement must be received in all courts as conclusive proof of the

time the application was received by the registrar.

2 The following

Part is added:

Part 10.1 – Electronic Filing

Division 1 –

Interpretation and Application

Definitions

168.1 In this Part:

"certificate" means a computer-based record

created by a certification authority and issued to a subscriber for the purposes of

permitting the subscriber to sign

(

a) electronic applications and electronic instruments under this

Part, and

(

b) electronic returns under the Property Transfer Tax Act;

"certification authority" means a certification

authority recognized by the director under

section 168.71;

"certification practice statement" means the

statement approved by the director under

section 168.71;

"electronic" includes electrical, analog,

digital, magnetic, optical or electromagnetic and any other form based on a similar

technology;

"electronic application" means an application in

electronic format;

"electronic instrument" means an instrument in

electronic format and includes the electronic form of any document that is required or

permitted to be filed, lodged or deposited in the land title office under this Act;

"electronic signature" means a signature in

electronic format that is

(

a) created by a subscriber using a private cryptographic key

under the control of the subscriber that corresponds to a public cryptographic key

contained in a certificate, and

(

b) incorporated into

(

i) electronic applications and electronic instruments under this

Part, and

(ii) electronic returns under the Property Transfer Tax Act;

"officer" has the same meaning as in

Part 5;

"subscriber" means an individual who is

authorized by a certificate to sign

(

a) electronic applications and instruments under this Part, and

(

b) electronic returns under the Property Transfer Tax Act;

"transferor" has the same meaning as in

Part 5.

Application of this

Part

168.11 This Part applies only to the prescribed land title

districts and to those applications, instruments and other documents the electronic form

of which is prescribed under this Part.

Division 2 – Electronic Applications and Instruments

Effect of electronic applications and instruments

168.2 Except as provided in this Part, an electronic

application or electronic instrument that meets the requirements of this Part and is

received by the registrar under

section 153 has the same effect for all purposes as an

application or instrument in writing that meets the requirements of this Act and is

received by the registrar under

section 153.

Form and manner of completion

168.21 Electronic applications and electronic instruments

submitted under

section 168.4 must be in the prescribed form, contain the prescribed

information and be completed in the prescribed manner.

Signing requirements

168.3

(1) An electronic instrument must be signed in

accordance with this

section before it is submitted under

section 168.4.

(2) An electronic instrument is signed for the purposes of this

section when a subscriber incorporates his or her electronic signature into the instrument

in accordance with the regulations.

(3) A subscriber must not incorporate his or her electronic

signature into an electronic instrument unless

(

a) a true copy of the electronic instrument has been executed and

witnessed in accordance with

Part 5, and

(

b) the true copy referred to in paragraph (a), or a copy of that

true copy, is in the possession of the subscriber.

(4) The incorporation of the electronic signature of a subscriber

into an electronic instrument in accordance with this

section is a certification by the

subscriber of the facts referred to in subsection (3) (

a) and (b).

(5) If the execution of a true copy of an electronic instrument is

witnessed by an officer who is not the subscriber, the subscriber, in incorporating his or

her electronic signature into that instrument, is entitled to rely on the applicable

certification of the officer under

Part 5 unless the subscriber knows that

(

a) the person who signed the instrument as the transferor or

officer is not the person named in the instrument as transferor or officer, or

(

b) the person named in the instrument as the officer is not an

officer.

(6) Despite any enactment or rule of law, an electronic instrument

that has been signed by a subscriber in accordance with this

section is conclusively

deemed to be in writing and signed by the transferor.

(7) An electronic instrument signed in accordance with this

section is conclusively deemed to have been executed and witnessed on the date the true

copy referred to in subsection (3) (

a) was executed and witnessed regardless of the date

on which the electronic signature of the subscriber was incorporated into the instrument.

(8) An electronic application is only required to be signed if a

supporting document is described in the application for the purposes of

section 168.41.

Delivery of electronic instruments

168.31 The delivery by the transferor to the transferee, or

the solicitor or agent of the transferee, of the true copy of an electronic instrument

that has been executed and witnessed in accordance with

Part 5, or a copy of that true

copy,

(

a) authorizes the persons referred to in

section 168.4 (2) to

submit the electronic instrument for registration, and

(

b) satisfies the transferor's obligation under the Property

Law Act or any other rule of law to deliver an instrument in registrable form.

Submitting electronic applications and instruments

168.4

(1) An electronic application or electronic

instrument is submitted for the purposes of this

section when the application or

instrument is transmitted electronically to the land title office in the prescribed manner

using the prescribed technology.

(2) Any of the following persons may submit an electronic

application or electronic instrument under this section:

(

a) an applicant;

(

b) the solicitor or agent of an applicant;

(

c) any other person authorized by a person referred to in

paragraph (

b) to submit the application on his or her behalf.

(3) The submission of an electronic application under this

section

implies a statement by the person submitting it that he or she or, as the case may be, the

person on whose behalf the application is made

(

a) is applying for registration under this Act,

(

b) is entitled to be registered as the owner in fee simple of the

land described or as the owner of the charge specified over the land described, and

(

c) claims registration accordingly.

(4) The person submitting an electronic application, unless he or

she is the applicant, must state whether he or she is acting as solicitor or agent for the

applicant or is a person authorized by either of them, and if the person submitting fails

to so state, that person is deemed to state that he or she is the duly authorized agent

for the applicant.

(5) An electronic instrument submitted for registration under this

section must be accompanied by an electronic application unless

(

a) the application is part of the electronic instrument, or

(

b) the instrument itself constitutes a sufficient form of

application under

section 147 (3).

Supporting documents

168.41

(1) In this section, "supporting

document" means a document required by this Act to be filed, lodged or deposited

in the land title office in conjunction with an application for registration.

(2) If an electronic application contains

(

a) an electronic signature of a subscriber incorporated in

accordance with the regulations,

(

b) a description of a supporting document adequate to identify

the document,

(

c) a statement that the subscriber has possession of the

supporting document, and

(

d) a

summary, in the prescribed form, of the material facts set

out in the supporting document,

the electronic signature referred to in paragraph (

a) is a

certification by the subscriber that the

summary of material facts set out in the

application accurately reflects the material facts set out in the supporting document.

(3) The certification under subsection (2) satisfies any

requirement under this Act to file, lodge or deposit the supporting document in the land

title office.

(4) This

section applies only to the prescribed supporting

documents.

Electronic instrument taking effect as a deed

168.5 If an electronic instrument submitted in accordance

with this

Part contains a statement that the transferor intends it to take effect as a

deed, the electronic instrument takes effect as a deed.

Production of evidence

168.51 The registrar may, before the registration of an

estate, interest or claim evidenced by an electronic instrument, require that an applicant

(

a) produce for inspection

(

i) the executed true copy of the electronic instrument referred

to in

section 168.3 (3) (a), or

(ii) a supporting document referred to in

section 168.41 or a true

copy of a supporting document, or

(

b) produce evidence, satisfactory to the registrar, to verify

that a transferor

(

i) executed a true copy of the electronic instrument in the

presence of an officer, and

(ii) made the applicable acknowledgment under

Part 5.

Evidentiary matters

168.6

(1) An electronic instrument that has been received

by the registrar under

section 153 is conclusively deemed to be the original of the

instrument.

(2) Section 38 (4) and (5) does not apply to electronic

instruments.

(3) A copy of an electronic application or electronic instrument

that is

(

a) obtained from the records of the land title office, and

(

b) certified by the registrar to be a true copy of the original

instrument or application

is conclusive evidence of the original and is admissible in a

court to the same extent as the original.

(4) A certification of the registrar under subsection (3) is

conclusive evidence that

(

a) the technology and procedure used by the registrar to receive,

store, retrieve and copy the electronic application or instrument is capable of recording

and reproducing all significant details of the electronic application or instrument

without any additions, deletions or changes, and

(

b) the electronic application or instrument was received, stored,

retrieved and copied by the registrar in the usual and ordinary course of business.

(5) If there is a difference between a copy of an electronic

application or instrument certified under subsection (3) and a copy of the application or

instrument obtained from a source other than the records of the land title office, the

former prevails over the latter whether or not the latter contains an original signature

of a transferor or other person.

Admissibility of electronic instruments

168.61

(1) Section 35 does not apply to an electronic

instrument.

(2) Except to the extent necessary to prove the authenticity of a

signature or other writing, mark or impression, a copy of an electronic instrument that

contains an original signature or other writing, mark or impression made before the

electronic instrument was submitted under

section 168.4 is not admissible in a court for

any purpose.

Disposal of electronic applications and instruments

168.7 (1)

Section 166 (2) does not apply to an electronic

application or an electronic instrument.

(2) If an electronic application relating to the registration of

an electronic instrument is void as a result of a refusal of the registrar or a withdrawal

by the applicant, the registrar may delete that application and instrument from the

records.

Division 3 – Certification of Subscribers

Certification authority

168.71 For the purposes of this Act and the Property

Transfer Tax Act, the director may recognize a certification authority if

(

a) the certification authority has adopted and published a

certification practice statement that has been approved by the director, and

(

b) the director is satisfied that

(

i) the certification authority is capable of administering the

certification practice statement, and

(ii) subscribers named in certificates issued by the certification

authority are required to observe and comply with the certification practice statement.

Certification practice statement

168.8 A certification practice statement must contain

(

a) the policies, practices and procedures to be used by a

certification authority in

(

i) issuing, administering, suspending and revoking a certificate,

(ii) providing access to the information contained in a

certificate, and

(iii) establishing and maintaining the security and validity of

electronic signatures of subscribers, and

(

b) other provisions that the director considers necessary,

including provisions relating to the form and content of certificates and provisions to

ensure

(

i) that an electronic signature is unique to a specific

subscriber,

(ii) that a subscriber named in a certificate is eligible to be a

subscriber under the regulations, and

(iii) the security of the electronic filing system contemplated by

this Part and the Property Transfer Tax Act .

Certification authorities warranties

168.81

(1) The issue of a certificate by a certification

authority constitutes a warranty by the certification authority of the following matters:

(

a) the information contained in the certificate is, to the

knowledge of the certification authority, true;

(

b) the certificate was issued in accordance with the

certification practice statement;

(

c) the subscriber to whom the certificate was issued has agreed

to observe and comply with the requirements of the certification practice statement;

(

d) the subscriber named or identified in the certificate is

eligible to be a subscriber under the regulations;

(

e) the certification authority will act promptly to suspend or

revoke a certificate in accordance with the requirements of the certification practice

statement.

(2) Both the registrar and the administrator under the Property

Transfer Tax Act are entitled to rely on the warranties referred to in subsection (1).

Immunity

168.82 In the absence of an unlawful or negligent act or

omission by a certification authority in relation to its powers or duties under this Act,

no action for damages lies or may be brought against a certification authority in respect

of any loss or damage arising out of an unlawful or negligent act or omission of a

subscriber under this Act or the Property Transfer Tax Act.

Division 4 – General

Offences

168.9 A person commits an offence if the person

(

a) incorporates his or her electronic signature into an

electronic instrument or electronic application without first complying with the

provisions of this Part, or

(

b) incorporates the electronic signature of another person into

an electronic application or electronic instrument.

Power to make regulations

168.91

(1) The Lieutenant Governor in Council may make

regulations for the purposes of this Part.

(2) Without limiting subsection (1), the Lieutenant Governor in

Council may make regulations as follows:

(

a) prescribing, for the purposes of the definition of

"electronic instrument", the electronic form of documents required or permitted

to be filed, lodged or deposited in the land title office under this Act;

(

b) prescribing the land title districts to which this Part

applies;

(

c) prescribing the form of electronic applications and electronic

instruments for the purposes of this Part;

(

d) prescribing the information that must be included in

electronic applications and electronic instruments for the purposes of

section 168.21;

(

e) prescribing the manner in which electronic applications and

electronic instruments are to be completed for the purposes of

section 168.21;

(

f) prescribing the manner in which electronic signatures are to

be incorporated into electronic applications and electronic instruments for the purposes

of this Part ;

(

g) prescribing the manner in which electronic applications and

electronic instruments are to be transmitted to the land title office and prescribing the

technology to be used for the purposes of

section 168.4;

(

h) prescribing the form of

summary of material facts for the

purposes of

section 168.41 (2) (d);

(

i) prescribing the supporting documents to which

section 168.41

applies;

(

j) prescribing the classes of persons who are eligible to be

subscribers and prescribing the classes of electronic applications or instruments each

class of persons is permitted to sign electronically;

(

k) prescribing the information that must be included in a

certificate issued by a certification authority;

(

l) prescribing the applications or instruments, or the classes of

applications or instruments, that must be in electronic format and filed electronically

under this Part;

(

m) exempting or authorizing the director to exempt any person,

instrument, document or thing from any of the provisions of this Part, other than

section

168.9, or from any of the provisions of the regulations made under this Part;

(

n) respecting the security of the electronic filing system

contemplated by this Part and the Property Transfer Tax Act ;

(

o) respecting the technological standards that apply to the

electronic filing system contemplated by this Part and the Property Transfer Tax Act,

including standards applicable to electronic signatures.

(3) If another enactment prescribes the form and legal effect of a

document referred to in the definition of "electronic instrument", the

electronic form of that document prescribed under subsection (2) (

a) has the same legal

effect as under the other enactment despite any differences between the electronic form

and the form prescribed under the other enactment.

Section 308 is amended by adding the following subsections:

(1.1) The notice required to be served under subsection (1) may be

in electronic format.

(1.2) If a notice in electronic format is served by electronic

means under

section 315, the notice is deemed to be in writing for the purposes of

subsection (1) of this section.

Section 315 (1) is amended by adding the following paragraph:

(a.1) by electronic means, .

Section 386 is amended by adding the following subsections:

(3.1) Payment of fees required by this

section in respect of the

registration of an electronic application or electronic instrument, as those terms are

defined in

Part 10.1, may be made by electronic means in accordance with the regulations

made under subsection (3.2).

(3.2) The Lieutenant Governor in Council may make regulations

respecting the manner in which payment of fees by electronic means is to be made under

subsection (3.1).

Consequential Amendments

Property Transfer Tax Act

Section 1 (1) of the Property Transfer Tax Act, R.S.B.C. 1996, c. 378, is

amended by adding the following

definitions:

"electronic" has the same meaning as in

Part 10.1

of the Land Title Act;

"electronic return" means a return in electronic

format, the form of which is prescribed under

section 37;

"electronic signature" has the same meaning as in

Part 10.1 of the Land Title Act;

"subscriber" has the same meaning as in

Part 10.1

of the Land Title Act; .

Section 2 is amended

(

a) by adding the following subsection:

(1.1) In the case of an application for registration submitted

under

Part 10.1 of the Land Title Act,

(

a) the tax required to be paid under subsection (1) (

a) must be

paid by electronic means at the prescribed time and in the prescribed manner, and

(

b) the return required to be filed under subsection (1) (

b) must

be an electronic return that is filed by electronic means in the prescribed manner. ,

and

(

b) by repealing subsection (8) and substituting the following:

(8) A registrar may, without a hearing, refuse to accept an

application for registration of a taxable transaction if the registrar has reasonable

grounds to believe that

(

a) the tax relating to the transaction has not been paid or the

return required by subsection (1) is incomplete or has not been filed, and

(

b) in the case of an application for registration referred to in

subsection (1.1), any of the requirements of that subsection has not been fulfilled.

8 The following sections are added:

Electronic returns

13.1

(1) An electronic return must be signed in accordance

with this

section before it is filed under

section 2 (1.1) (b).

(2) An electronic return is signed for the purposes of this

section when the electronic signature of a subscriber has been incorporated into the

electronic return in accordance with the regulations.

(3) A subscriber must not incorporate his or her electronic

signature into an electronic return unless

(

a) a true copy of the electronic return has been certified in

accordance with

section 13, and

(

b) the true copy referred to in paragraph (a), or a copy of that

true copy, is in the possession of the subscriber.

(4) The incorporation of the electronic signature of a subscriber

into an electronic return in accordance with this

section is a certification by the

subscriber of the facts referred to in subsection (3) (

a) and (b).

(5) A transferee on whose behalf an electronic return has been

filed under this Act, or any other person specified in the regulations, must

(

a) retain the true copy of the electronic return referred to in

subsection (3) (a), or a copy of that true copy, for the prescribed period, and

(

b) produce it to the administrator for inspection if requested by

the administrator.

Evidence of electronic returns

13.2

(1) A copy of an electronic return that is

(

a) obtained from the records of the administrator, and

(

b) certified by the administrator to be a true copy of the

electronic return

is conclusive evidence of the electronic return.

(2) A certification of the administrator under subsection (1) is

conclusive evidence that

(

a) the technology and procedure used by the administrator to

receive, store, retrieve and copy the electronic return is capable of recording and

reproducing all significant details of the electronic return without any additions,

deletions or changes, and

(

b) the electronic return was received, stored, retrieved and

copied by the administrator in the usual and ordinary course of business.

Section 14 (4) is amended

(

a) in paragraph (

t) by striking out "and a copy of the

administrator's certificate to that effect is attached to the return filed under

section

2" and substituting "as evidenced by an administrator's

certificate to that effect" , and

(

b) by repealing paragraph (u) (ii) and substituting the following:

(ii) the continuing corporation files a certificate of

amalgamation with the administrator, at the request of the administrator and within the

time period specified by the administrator; .

Section 16 (5) is amended by striking out "attached to the return

filed under

section 2" .

11 The following

section is added:

Offences in respect of electronic returns

34.1 A person commits an offence if the person

(

a) incorporates his or her electronic signature into an

electronic return without first complying with the provisions of this Act, or

(

b) incorporates the electronic signature of another person into

an electronic return.

Section 37 (2) is amended by adding the following paragraphs:

(

u) prescribing the form of electronic returns for the purposes of

this Act;

(u.1) prescribing the time at which and the manner in which tax is

to be paid by electronic means under

section 2 (1.1) (a);

(

v) prescribing the manner in which an electronic return is to be

filed by electronic means under

section 2 (1.1) (b);

(v.1) prescribing the manner in which electronic signatures are to

be incorporated into electronic returns for the purposes of this Act;

(

w) prescribing the information that must be included in

electronic returns;

(w.1) prescribing the manner in which electronic returns are to be

completed;

(

x) specifying persons who are required to retain copies of

electronic instruments, and prescribing the period of retention, for the purposes of

section 13.1 (5);

(

y) exempting or authorizing the administrator to exempt any

person from any of the provisions of this Act or the regulations respecting the filing of

electronic returns.

Commencement

13 This Act comes into force by regulation of the

Lieutenant Governor in Council.

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