The ever-shrinking scope of a deed (in Ontario)

I was checking on required paperwork for executing  power of attorney recently, and was fascinated by the variety of forms in effect in Canadian jurisdictions. While Quebec's form is based on the civil law and its concept of a mandate, the default form in the common-law provinces (other than Ontario and BC) calls for execution in the form of a deed. The latter two provinces don't require that to be done. That begs the question as to when the rules diverged, and what else happened along the way. This has proved to be a messy bit of legal history here in Ontario.

What a deed could cover (Blackstone, 1765)

The default position in this Province is that we adopted the English law as it existed at 15 October 1792, as noted in the Property and Civil Rights Act. This means that we need to see what the legal commentaries were saying about what the jurisprudence stated at the time. Halsbury's Laws of England, while an excellent source, only goes back to the early 1900s, but Blackstone's Commentaries on the Laws of England goes back much further, and I think the 1765 version is probably the closest to the starting point we need.

We can immediately draw upon the following observations:

• "a deed is a writing sealed and delivered by the parties"
• "it is the most solemn and authentic act that a man can possibly perform ... and therefore a man shall always be estopped by his own deed, or not permitted to aver or prove anything in contradiction to what he has once so solemnly and deliberately avowed"

And the requisites of a deed?

1. Persons able to contract and be contracted with, together with a thing or subject matter to be contracted for, all of which must be sufficiently identified.
2. Be founded on good and sufficient consideration, which may be good (ie, founded on generosity, prudence or natural duty) or valuable (such as money, marriage, or the like, and therefore founded in motives of justice). Those founded on good consideration are considered voluntary, and are more likely to be set aside in favour of creditors and bona fide purchasers.
3. It must be written on paper or parchment.
4. There must be words sufficient to specify the agreement and bind the parties.
5. It must be read by (or out to) any party that desires it, in order not to be declared void.
6. Each party must seal it, and preferably sign it as well.
7. It must be attested by witnesses, in order to preserve the evidence. They did not need to sign themselves, but their presence at the reading had to be recorded.

Deeds are further grouped as follows:

• Primary conveyances, where a benefit or estate first arises, being  feoffments, gifts, grants, leases, exchanges and partitions.
• Secondary conveyances, where a benefit or estate is enlarged, restrained, transferred or extinguished, being releases, confirmations, surrenders, assignments and defeazances.
• Uses and trusts (including charitable trusts).
• Charges and discharges, such as obligations or bonds (ie, to pay a certain sum of money to another on an appointed day), recognizances (ie, to do a specified act) and defeazances (conditions when, once performed, serve to defeat or undo an obligation or recognizance).

There was a general limitation period of 20 years with respect to commencing a civil action.

Further English jurisprudence expanded on these premises, as Halsbury explains further:

•  "A deed is necessary for every transaction which the common law requires to be evidenced by writing." (at 652)
• "A deed is also required for any power of attorney which authorizes the attorney to execute a deed or to deliver seisin on the principal's behalf." (at 655)
• "... a corporation can only bind itself by deed under its corporate seal."
• "Gifts or gratuitous assignments of ... tangible goods, must, if not accompanied by delivery of possession, be made by deed."
• "... all gratuitous promises must be made by deed to become legally enforceable."
• "The appointment by the father or the mother of a guardian by statute of his or her child must, if not made by will, be made by deed." (at 657)
• the alienation of any contingent, executory or future interests in real property, as well as any right of entry thereon, must be made by deed. (at 664)
• equity does provide that "a deed is not necessary to effect the gratuitous assurance of any equitable estate, interest or right, provided that the intention of actual and immediate assignment (as opposed to a mere promise of future assignment or gift) be clearly expressed and that the assurance be put in writing and signed by the assuror." (at 677)
• A deed can be either a deed poll (ie, made by one party only) or an indenture (made by two or more parties, but it has to expressed as being between them). (at 680). It should be noted that a deed poll used to be the method by which a person could formally change his name.

There are numerous, and very specific requirements, that must be followed to ensure that the form of the deed will truly be valid, but the above serves to outline the general concepts that were imported to Upper Canada's law, and hence later to Ontario's.

Later modifications

There were surprisingly few modifications to the common law during the 19th and early 20th centuries:

• in 1837, the 20-year limitation period was restricted to actions commenced with respect to deeds, as opposed to a 6-year period for other matters
• in 1865, certain reforms introduced into English law by the Law of Property Amendment Act 1859 were imported to Upper Canada:
• deeds henceforth required attestation by two or more witnesses (s. 11)
• a power of attorney executed by a married woman was valid, in the same manner as for deeds and conveyances that could be executed by her (s. 22)
• a power of attorney is not extinguished by the decease of the grantor, and any acts done thereafter are valid as long as they were done in good faith (ss. 23-24)
• the provision in relation to married women was quietly repealed in 1877
• the other provisions relating to power of attorney were reenacted as a separate statute in 1910, and amended in 1911 to import  s. 23 of the English Trustee Act 1893.
• the requirement for two witnesses to attest was reenacted in 1911 as part of the The Conveyancing and Law of Property Act

 

Subsequent reforms

The Legislature of Ontario has since passed several important pieces of legislation that have served to restrict the availability of deeds:

Subject	Act	Effect
Deeds of guardianship	An Act respecting the Guardianship of Minors, SO 1887, c. 21	Deeds available only to mothers of children. (s. 3)
	Children's Law Reform Amendment Act, 1982, SO 1982, c. 20	Guardianship of the person (ie, custody and access) and guardianship of the child's property are now governed by separate applications to the court
Change of name	The Change of Name Act, 1939, SO 1939, c. 6	Available only through an application to a judge of a county or district court (ss. 3, 13), except for changes arising from marriage or adoption (s. 13)
Corporate capacity to execute contracts	The Business Corporations Act, 1970, SO 1970, c. 25	A contract "may be entered into on behalf of a corporation in writing signed by any person acting under its authority, expressed or implied."  (s. 18(2-3)) This appears to be the source for the statement found in most corporate documents here, being "I have authority to bind the Corporation."
	Canada Business Corporations Act, SC 1974-75-76, c. 33	An instrument or agreement executed on behalf of a corporation "is not invalid merely because a corporate seal has not been affixed thereto." (s. 23)
Power of attorney	The Powers of Attorney Act, 1979, SO 1979, c. 107	A power of attorney is available only in the specified form. (s. 2)
	Substitute Decisions Act, 1992, SO 1992, c. 30	Powers of attorney are subdivided into those relating to property (Part I), and those relating to personal care (Part II). Separate guardianship proceedings in both matters provided for those adults subject to the Mental Health Act.
Land registration	Land Registration Reform Act, 1984, SO 1984, c. 32	Any document recording a change of interest in land "need not be executed under seal by any person". (s. 13)
Limitations of actions	Limitations Act, 2002, S.O. 2002, c. 24, Sched. B	From 2004, in all matters other than for real property, actions may not be commenced more than two years after when the claim was discovered (s. 4), and no more than fifteen years after the act or omission had taken place (s. 15)

The remaining field

What scope remains? After the registration of real property being removed from being evidenced by deed, the benefit of longer limitation periods having been removed, and the gradual removal of more personal acts, there appears to be very little left, but there are some useful matters that remain:

• Deeds of trust (including those creating charitable trusts) are very much alive
• They are still necessary in order to enforce gratuitous promises
• Any contracts that could be attacked for lack of consideration would be protected when executed by deed
• Where "actual and immediate assignment" is not contemplated in a transaction, a deed is still useful to protect a party's interest

This serves as merely a thumbnail sketch of the topic, and I'm sure that legal scholars would be able to flesh it out more comprehensively, but it should suffice for general purposes in this province.

Does your employee really exist?

I'm being quite serious with this question, because I have seen many instances where that was not the case:

• One person's Social Insurance Number was rejected when input into the payroll system, and he was asked to bring in his card. He left and never returned to work.
• There was another instance where one person used another's SIN, and came into the payroll office later to say that he had finally gotten his own card. (He was fired on the spot.)

This is in addition to the other stories we've heard about false credentials, fake IDs and falsified references. Quite plainly, Canadian employers have been quite lax in who they've hired over the years. Even now, pre-screening in the hiring process is error-prone to the point of producing false positives and negatives, and human rights legislation prevents vetting at the point of application.

How then should we ensure that our prospective employees are who they say they, have the requisite qualification for the position, and are of good character as well? The best recommendation is to make all job offers contingent upon satisfying specific verification requirements before their start date. The following checklist is certainly a good start.

The basics

To start, we require:

• proof of Social Insurance Number (required for any reporting to the CRA)
• proof of name (duh!)

For the SIN, providing the card (if issued before 31 March 2014) or verification letter (if issued afterwards) will be sufficient, and a copy should be made for the employee file. For the name, I would prefer seeing an original voided cheque from a Canadian financial institution that has the person's name preprinted thereon. The latter will be useful for setting up direct deposit for the employee, which should be standard practice for all employers.

Proving identity and eligibility to work

While the basics are necessary, they are not sufficient in themselves to prove what is essential:

• identity
• address
• eligibility to work in Canada

Proof of identity

Put quite simply, having a name does not mean it belongs to the person in question without further proof. We will need ID that bears the person's photo, date of birth and signature as well. A basic list would include:

• a current driver's licence or photo ID card issued by a government agency
• a current passport
• a current secure Certificate of Indian Status card

Amazingly, this is a very short list, as not many other documents in Canada consistently carry all four elements. The Canadian Permanent Resident Card, for example, stopped showing the signature on cards issued from 4 February 2012.

Proof of address

If a person does not have a driver's licence or photo ID as noted above, an original mailed account statement from a Canadian financial institution (issued within the previous three months), or a recent notice of assessment from the CRA, should be sufficient to prove one's address. Failing those, other acceptable documents would be those listed for an Ontario Health Card application.

Eligibility to work

None of the above documents (with the exception of a Canadian passport) proves that a person is eligible to work in Canada. For that, we must consult the list of documents acceptable for applying for a Social Insurance Number. The essential documents are:

Canadian citizens  Certificate of birth or birth certificate issued by a province or territory  Certificate of Canadian Citizenship  Certificate of Registration of Birth Abroad issued before 1977

Permanent residents   Permanent resident card  Confirmation of Permanent Residence (only acceptable if used within one year of the date of becoming a permanent resident)  Record of Landing issued before June 28, 2002.

Temporary residents   Work permi  Study permit, indicating authorization to work in Canada  Visitor record, indicating authorization to work in Canada  Diplomatic identity card and a work authorization issued by Global Affairs Canada.

Proof of credentials

We also need to verify an employee`s education and (where required) professional credentials.

For Canadian schools, this can be a very fragmented process, as transcripts are only provided directly to the people that were in the courses. If you just want a verification that a degree, diploma or certificate had been obtained, this has been simplified in recent years:

• Many universities and colleges have gotten together to provide this confirmation via AuraData
• Some provide a separate service, such as the University of Toronto

For foreign schools, the candidates will have to provide original documents, with translations where required. There are services available that can be useful for verifying such credentials. They are worth checking, because it's stupid to insist only on Canadian experience where there are many examples of more superior sources available internationally. Even the management guru Peter Drucker has said so.

The information available from professional bodies will vary from one organization to another. For example, in the accounting profession in this province CPA Ontario will not provide information directly to employers, but will send to members on request:

• a letter of good standing (to student members only)
• a history of practical work experience (where available)
• education records

There is no membership card issued these days to prove that a member is in good standing, but a copy of their account profile can be obtained online and printed. Because of the CA/CGA/CMA merger (effectively in 2014, but legally sanctioned only in 2017), I would not ask for the original certificates such legacy members obtained, as that could constitute prima facie age discrimination. For example, I originally qualified as a Registered Industrial Accountant (RIA) in 1984, a year before it was reconstituted as Certified Management Accountant (CMA). Even the dumbest HR staff can do the math on that, so why give them the chance to back out of the offer (albeit on other bogus grounds)?

Proof of character

Beyond the question of proving documentation, there are other fundamental questions relating to a candidate's character:

• Is there a criminal record showing convictions, not otherwise pardoned, suspended or expunged, that would raise concerns relating to past behaviour that would be abhorrent to an employer? Quebec has a checklist of offences relating to dishonesty and corruption under Schedule I of the Anti-Corruption Act; the CRA has more general provisions relating to individuals who are potentially ineligible to hold a senior position in a charity; and the provincial securities commissions have a very comprehensive list for any director or officer of a public company, as shown in Schedule A of National Instrument 41-101. The checklist an employer will use has to be necessarily proportionate to its requirements (eg, a candidate for the Finance function will most likely need to have a clean record as far as offences for financial dishonesty are concerned).
• Would a candidate's financial prudence be relevant in assessing acceptability for a position? If so, a credit report may be required to look for potential red flags.
• Are there factors or concerns in a candidate's employment history that have never made it to the public record? That is why references must always be sought and checked out. They must also provide real information: a reference available only from HR that provides just bare details such as hire and exit dates may very well cover up an adverse background. For an appropriate process, the Government of Canada has an excellent page on structured reference checks.
• Are there other factors or concerns about the candidate's personal character that may be relevant to future performance? Social media checks are happening now, and Google may reveal some rather positive - or awkward - information.

How far back do you need to go? It depends on how crucial or senior the position is, but five years is probably a safe span of time, unless something pops up that may justify going back further.

Other crucial needs?

The potential requirements an employer has may extend beyond the minimum noted above:

• If a position is situated on a First Nations reserve and the candidate asserts that he/she is Indigenous, they will need to show a Certificate of Indian Status card to prove the claim. That is necessary in order to prove the right to earn pay tax-free for working on the reserve.
• Specialist certifications, such as those for bus and truck drivers, pilots and seamen, will need to be provided if the position calls for them.
• Eligibility to obtain security clearances for access to sensitive areas will be relevant for the positions that call for it, and may well be a prerequisite before an offer is actually presented.

Does this need to be done again later?

Sadly, a person's position and circumstances will change over time. If a person obtains new educational or professional qualifications, they should have an obligation to inform the employer about such changes, through the processes outlined above, and frequent voluntary updates will only make it easier to administer.

If someone is initially hired for a low-level position and is subsequently promoted to one with more responsibility, more stringent requirements may apply with respect to character and that part of the verification process may have to be repeated before the new position is offered.

There can certainly be more requirements an employer has and, subject to the restrictions imposed under human rights legislation, appropriate steps will need to be added. This is not an easy task, so good luck!