Are electronic signatures legal in Canada?

The basic rule

Canada has no single e-signature law. Each province and territory has its own act, federal law covers requirements in federal statutes, and Quebec has a framework of its own. Most of the provincial acts use much the same wording. Ontario’s act is a fair example of what they say:

• Electronic form alone does not make a document invalid: a document is “not invalid or unenforceable by reason only of being in electronic form” (s. 4).
• A legal requirement that a document be signed is satisfied by an electronic signature (s. 11).
• A requirement for writing is met by an electronic document that is accessible so it can be used for later reference (s. 5).
• An electronic signature is electronic information that a person creates or adopts in order to sign a document and that is in, attached to or associated with the document (s. 1).
• An offer or an acceptance can be expressed electronically, including by clicking an icon, unless the parties agree otherwise (s. 19).

The act in each province and territory

The British Columbia, Alberta, Saskatchewan, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador and Northwest Territories acts each say that an electronic signature satisfies a requirement for a signature.

Manitoba is worded differently. Its rule that an electronic signature meets a signature requirement applies to the laws designated under its act (s. 13), and the act also says a contract is not denied legal effect merely because an electronic document was used to form it (s. 19).

Federal law

Part 2 of the Personal Information Protection and Electronic Documents Act (PIPEDA) deals with electronic documents under federal law. Its purpose is to allow electronic alternatives where federal laws contemplate the use of paper (s. 32).

A signature that a federal law requires can be an electronic signature if that law, or the provision, is listed in Schedule 2 or 3 of PIPEDA and the regulations are followed (s. 43). Some federal requirements, such as an original document, call for a “secure electronic signature”: one made with a technology or process set out in regulations (ss. 31 and 42).

PIPEDA defines an electronic signature as one or more letters, characters, numbers or other symbols in digital form, incorporated in, attached to or associated with an electronic document (s. 31).

In matters under federal jurisdiction, including criminal cases, the Canada Evidence Act puts the burden of proving that an electronic document is what it claims to be on whoever relies on it, and the best evidence rule is met by proof of the integrity of the system that recorded or stored it (ss. 2, 31.1 and 31.2).

The usual conditions

The provincial acts attach a few conditions to electronic signatures, and the rules of evidence add one more: being able to show what happened.

• Consent to electronic means. No one can be made to use or accept electronic documents, but consent can be inferred from a person’s conduct (Ontario s. 3, British Columbia s. 4, Alberta s. 8). A public body’s consent has to be explicit (Ontario s. 14).
• Identifying the signer. For documents named in regulations, the signature must be reliable for identifying the person (Ontario s. 11(3), Alberta s. 16(2)).
• Linking the signature to the document. For those same documents, the association between the signature and the document must also be reliable (Ontario s. 11(3), Alberta s. 16(2)).
• Integrity. Where an original is required, there must be a reliable assurance that the document has stayed complete and unaltered since it was first made in its final form (Ontario s. 8, British Columbia s. 8).
• Proof. If a signature is challenged, the party relying on the record must show it is what it claims to be, and its integrity can be shown through the system that stored it (Ontario Evidence Act s. 34.1, Canada Evidence Act ss. 31.1 and 31.2).

A signature given to a public body may also have to meet that body’s own technical standards (Ontario s. 17).

Documents that are left out

Each act lists documents it does not cover, and the lists differ. Where an act does not apply, check the law that governs that kind of document. Some examples, from the acts themselves:

• Ontario: wills and codicils, trusts created by them, powers of attorney for an individual’s financial affairs or personal care, negotiable instruments, documents of title (apart from carriage of goods), and documents named in regulations (s. 31).
• British Columbia: wills, trusts created by wills, powers of attorney for financial affairs or personal care, documents that create or transfer interests in land and must be registered to be effective against third parties, and anything named in regulations (s. 2(4)). Parts of the act also do not apply to negotiable instruments or documents of title (s. 2(5)).
• Alberta: wills and codicils, trusts created by them, enduring powers of attorney, personal directives, records that create or transfer interests in land, guarantees under the Guarantees Acknowledgment Act, and negotiable instruments (s. 7).
• Saskatchewan: wills, health care directives, trusts created by wills, and powers of attorney for financial affairs or personal care (s. 4).
• Nova Scotia: wills and codicils, trusts created by wills, powers of attorney for financial affairs or personal care, and documents that create or transfer interests in land and must be registered (s. 3(3)). Negotiable instruments are left out of most of the act (s. 3(4)).

Land documents show how much the lists differ: the British Columbia, Alberta, Nova Scotia and Northwest Territories acts all leave out documents that create or transfer interests in land. Check your own province’s list, and its regulations, before you move a document to electronic signing. For real estate, see our guide to e-signatures for real estate deals.

Quebec

Quebec has its own regime. Its Act to establish a legal framework for information technology says the legal value of a document is neither increased nor diminished solely because of the medium chosen, and a document whose integrity is ensured has the same legal value on paper or in another medium (s. 5). A signature can be affixed by any process that meets the Civil Code’s definition of a signature (s. 39; Civil Code art. 2827). Our guide to e-signatures in Quebec covers the rest.