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.