Brian Madigan LL.B., Broker
BRMadigan@iSourceRealEstate.com

RE/MAX West Realty Inc.,
Brokerage
Independently owned and operated

96 Rexdale Blvd. 
Toronto, Ontario 


Phone: 416-745-2300
Toll Free: 1-888-507-0817

 

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Agent Fails to be Present as Witness (RECO Discipline)

March 22, 2016 - Updated: March 22, 2016

 

Agent Fails to be Present as a “WITNESS" (RECO Discipline)

 

This is somewhat interesting. The Agent, Bruce Wayne “witnessed” a client’s signature, but he seemed to have a completely different understanding than most people about what that meant.

 

Set out here are some comments from the RECO Decision:

 

WITNESS SIGNATURES

 

“31. On multiple occasions, Wayne signed transactional documentation as a witness to the buyer and/or seller’s signatures.

 

Wayne indicated, in brackets beside his signature, “By Email” or “By Fax”.

 

Wayne used this practice to ‘electronically witness’ the signing of documentation.

 

32. Despite purporting to act as a witness, Wayne was not physically present to actually witness the act of signing the documentation.

 

33. The instances in which Wayne ‘electronically witnessed’ the signing of documentation are as follows:

 

a) Exclusive Listing Agreement dated January 22, 2009 for the Property with Barney Rubble;

b) APS dated February 2, 2009, between the Consumers and Barney Rubble;

c) APS dated April 23, 2009 between Charon Company and Barney Rubble;

d) APS dated April 28, 2009 between Charon Company and Barney Rubble;

e) Exclusive Listing Agreement dated April 30, 2009 for the Property with Barney Rubble.”

 

Issues and Application to Code

 

The decision of RECO was rather detailed and dealt with several collateral issues, however as it relates to “witnessing” it was as follows:

 

“Wayne acted unprofessionally including as follows:

 

1. Wayne failed to promote and protect the best interests of his clients by:

 

C. Failing to be physically present to witness signatures on trade documentation when purporting to act as a witness.

 

2. Wayne failed to provide conscientious service to his clients and did not demonstrate reasonable knowledge, skill, judgment and competence in providing those services by:

 

C. Failing to be physically present to witness signatures on trade documentation when purporting to act as a witness.

 

5. Wayne failed to use his best efforts to prevent error, misrepresentation, fraud or any unethical practice in respect of a trade in real estate by:

 

C. Failing to be physically present to witness signatures on trade documentation when a witness.

 

6. Wayne engaged in acts which would reasonably be regarded as unprofessional by:

 

C. Failing to be physically present to witness signatures on trade documentation when purporting to act as a witness.

 

Electronically Witnessing Documents

 

There is no such thing. Apparently, that was unknown to Wayne. You need to be physically present.

 

The reason for that was quite simple. If ever called as a witness at trial, a witness should be able to confirm that the person who signed was:

 

  1. Not subject to undue influence,
  2. Not subject to threats or compulsion,
  3. Not subject to drugs,
  4. Not subject to alcohol,
  5. Not subject to deprivation of sleep.

 

On the positive side: the person signing was properly identified, appeared to sign freely, was competent and affixed their signature and seal.

 

So, you couldn’t do any of that, if you conducted business by fax or email, or even by courier.

 

Simply say that you “authenticate” the signature, and whatever you do, don’t say that you were the witness.

 

Note: As a rule, I use fictitious names. The actual case is published on RECO’s website and is available to the public. For educational purposes, the names of the parties really don’t have any bearing. If you need to quote the case, you will have to obtain the proper legal citation.

 

Brian Madigan LL.B., Broker

www.iSourceRealEstate.com


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Brian Madigan LL.B. Broker

RE/MAX West Realty Inc. Brokerage

Independently owned and operated

96 Rexdale Blvd. , Toronto Ontario,

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