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


The following electronic version is for informational purposes only.
The printed version remains the official version.


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:

1 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.

3 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.

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

(a.1) by electronic means, .

5 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

6 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; .

7 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.

9 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; .

10 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.

12 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.

 
Explanatory Notes

SECTION 1: [Land Title Act, amends section 153] permits the endorsement of electronic applications submitted under Part 10.1 of the Land Title Act.

SECTION 2: [Land Title Act, enacts Part 10.1] provides for the filing of applications, instruments and other documents in electronic format and the certification of subscribers to sign and transmit those documents to the land title office.

SECTION 3: [Land Title Act, adds section 308 (1.1) and (1.2)] permits notice of a refusal under section 308 (1) to be in electronic format and served by electronic means.

SECTION 4: [Land Title Act, adds section 315 (1) (a.1)] permits notices required to be served by the land title office to be served by electronic means.

SECTION 5: [Land Title Act, adds section 386 (3.1) and (3.2)] permits payment of fees by electronic means.

SECTION 6: [Property Transfer Tax Act, amends section 1 (1)] adds a number of definitions.

SECTION 7: [Property Transfer Tax Act, amends section 2]

SECTION 8: [Property Transfer Tax Act, enacts sections 13.1 and 13.2]

SECTION 9: [Property Transfer Tax Act, amends section 14 (4)] deletes the automatic requirement for an administrator's certificate to be attached to a return.

SECTION 10: [Property Transfer Tax Act, amends section 16 (5)] deletes the automatic requirement for an administrator's certificate to be attached to a return.

SECTION 11: [Property Transfer Tax Act, enacts section 34.1] creates certain offences relating to electronic signatures.

SECTION 12: [Property Transfer Tax Act, adds section 37 (2) (u) to (y)] provides regulation making powers in respect of the payment of tax by electronic means and the completion, signing, filing and retaining of electronic returns.


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