By Stuart Rudner
It is striking how much confusion seems to be caused by a small line on a printed page with the word "witness" beneath it. While having someone witness a person signing a document may be something most lawyers consider to be a routine matter, it is clearly not something the general public fully understands.
To begin with, the word "witness" is not only a noun used to describe a person in some circumstances; it is also a verb. To witness something means to observe it. We are all familiar with the concept of a witness at trial, who gives evidence as to what she saw or heard.
In the context of a signed document, the witness' role is to confirm she observed a specific person sign that specific document. The purpose is to avoid situations where an individual attempts to avoid the consequences of a document he signed by claiming it is not his signature.
The witness should be able to positively confirm that the individual, whom she identified, is the person who signed the document. At the same time, the witness is important in order to prevent forgery. Otherwise, the beneficiary of a document could fraudulently sign the name of the other party. While having a witness is certainly not foolproof, it does help to address the concerns raised above.
Unfortunately, most people do not take the time to consider the purpose of having a witness. On countless occasions, I have heard of someone signing a document and then leaving it for someone to witness later on. Of course, the witness did not actually witness anything. Similarly, I have had clients sign documents and then deliver them to my office for me to witness when I have time; of course, I cannot do so, since I did not see them actually sign.
In one case I was involved in very early in my career, before I began practising exclusively in the area of employment law, I was involved in litigation regarding a real estate transaction. In the course of an examination for discovery, one of the parties insisted she had witnessed the buyer sign the offer to purchase. However, the evidence was that he was in Oakville, Ont., while she was at her office in Hamilton. After several frustrating minutes of examination, it became clear her version of witnessing the signature was to have the buyer sign it in his office in Oakville, and then fax it to her at her office in Hamilton so she could witness it.
In all of the situations above, what is notable is none of the individuals involved thought, or even considered, they were doing anything wrong. No one had taken the time to explain to them that to be a witness, you had to actually observe the person signing the document in question.
Parties sign documents for a reason. Usually, it is because they want to enter into some sort of binding agreement. It might be an employment agreement, a full and final release, a severance package or something else. However, one of the intentions will be to create certainty regarding the relationship and the respective rights and obligations of the parties.
Having the signatures of the parties witnessed is a way to add to that certainty by reducing the risk one party will attempt to resile from the agreement by claiming it is not his signature. A witness who simply didn’t actually see him sign will not be of any value.
While it may sound simple, parties should remember that if a document calls for a witness, that witness must observe the parties signing the document. If there is any doubt whatsoever regarding whether the witness can confidently state she knows the identity of the party, then they should also ask for proper identification and satisfy themselves that the person signing the document is the party that is supposed to be signing.
I am often asked who can be a witness. In most cases, the simple answer is that it can be any adult.
Witnessing of a signature typically takes place at the end of negotiations, which may have taken place over days, weeks or months. As a result, it is often seen as a formality after all of the hard work has been done. However, parties need to understand what it means to have a signature witnessed and the importance of doing it properly.