One of the big issues that Canada’s e-commerce / e-transactions / etc. legislation in the past decade was intended to resolve was the legal status of electronic signatures. At least that was the popular impression. A lot of people (not necessarily lawyers) referred to the legislation as ‘the e-signature bill’. (The Law Commission of England and Wales concluded that no legislation was needed to make e-signature valid in that country / those countries, however, and I suspect that conclusion was valid here too.)
Have there been any cases in any jurisdiction in Canada on the legal status of electronic signatures under the e-commerce / etc legislation? If there are a lot of them (and I can’t think of any at the moment), is there a good collection?
E-signatures are valid on Provincial Offence tickets: City of London v. Caza, 2010 ONSC 1548 (CanLII)
A type-written signature can be valid: ING Insurance Company of Canada v. Jetty, 2010 ONSC 1091 (CanLII)
Thanks for the links David. This was actually discussed recently with colleagues.
The common law allows just about anything as a signature that can be shown to represent the appropriate intention. Thus A can sign B's name for B and it is B's signature, even if A's handwritten signature "B" does not look like B's usual signature. Signing machines can sign. Signatures can be stamps, as the judge notes in the ING case. Email headers have been held to satisfy the Statute of Frauds' requirement of a signature (in Singapore, but not in England). Letterhead has been held to be a signature, for the purpose of the Statute of Frauds.
The ING case is of course not an electronic signature case, but it helps show how easy it will be to show that an e-signature is a signature.
The harder question will come when the question is not whether one has a signature but who signed. That has not been in doubt in most of the cases. Then one will have to be concerned about the reliability of the method – not, in my view, to show that there is a signature at all but to attribute the signed document to a person. The same question would come up with an illegible handwritten signature: it would need outside evidence to show who signed. (That's why we don't see a lot of B signing for A – not because it's not a signature but because it needs an inconvenient amount of proof of attribution.)
I am pleased that the Superior Court upheld the London parking ticket, since I had a hand in the Provincial Offence e-signature regulations that the Court held were sufficient to support what was done in that case.
There was a similar case in Quebec lately relating to a speeding ticket: R v Bolduc at the municipal court and the Superior Court. The Court of Appeal of Quebec has given leave to appeal. There the machine printed the name and badge number of the officer, which could be done only by the actual officer, so it was sufficient to identify him.
Electronic Commerce Act, 2000, S.O. 2000, c. 17, s.17 referred to in Coco Paving (1990) Inc. v. Ontario (Transportation), 2009 ONCA 503(CanLII)
Validity of e-signatures on provincial tickets in Quebec (judgement in French)
the previous link didnt seem to work… sorry about that
The Coco Paving case deals in passing with the presumption of sending section of the E-Commerce Act and not with the signature rule. The judge handles the reference badly, in my view, but with the right result.
(The Court could have mentioned (a) that the rule on time of sending is a presumption only, possibly rebutted by the facts, and (b) more important, since the issue was the time of receipt not of sending, the E-Commerce Act has a presumption about the time of receipt as well – and the proven facts seemed to rebut any presumption that might have operated in favour of the respondent. The time-of-receipt rules in the Act were not even mentioned. Too bad (in my view) to waste the opportunity to interpret them when they were relevant.)
Any case law on pencil signatures in Canada?
I know this is behind the times, but it is in the spirit of the authenticity of a signature no matter what the medium.
There seems to be some provincial legislation (Alberta Act; Quebec Civil Code; Rules of Civil Procedure, R.R.O. 1990, Reg. 194) stating that a physical signature is valid if it is an original and it has been "executed as it purports to have been". However most references point to the holograph wills as examples.
Could anyone provide some case law examples for pencil signatures, or point me to an appropriate forum?
Another update from Quebec here. I pointed earlier the case of Boivin v. Montreal (city) from the Quebec Superior Court for the validity of e-signatures on provincial tickets in Quebec.
I just heard that the Quebec Court of Appeal WILL listen to Boivin's appeal. So this case is not over yet.