Ending the Signature Fetish?

A man was injured driving a go-kart at a track in Saskatchewan. He sued the owners of the track. The owners moved to dismiss the action because the plaintiff had waived their liability on an electronic form. The plaintiff argued that it was not clear that he had signed the waiver. Held: for the owners.

Quilichini v Wilson’s Greenhouse, 2017 SKQB 10 (CanLII)

The court considered SK’s Electronic Documents and Information Act, which implements the Uniform Electronic Commerce Act. The court properly (in my view) looked at s. 18 of the Act (s. 20 of the Uniform Act) on electronic contracts, and not s. 14 on signatures (s. 10 of the Uniform Act).

The plaintiff’s focus on signatures was misleading (though the court did not put it that way.) The essence of a contract is consent, not form. It is a rare contract that needs a signature in order to be valid. Thus in the normal course it is a waste of time and a mistake of law to try to show that clicking an icon marked “OK” is or is not a signature. The right question is whether it shows that the person who clicked “OK” agreed to the terms that are to be enforced against that person.

The SK law is almost almost exactly the Uniform Act on this point:

18(1) Unless the parties agree otherwise, an offer or the acceptance of an offer, or any other matter that is material to the formation or operation of a contract, may be expressed:
(a) by means of information or a document in an electronic form; or
(b) by an action in an electronic form, including touching or clicking on an appropriately designated icon or place on a computer screen or otherwise communicating electronically in a manner that is intended to express the offer, acceptance or other matter.
(2) A contract shall not be denied legal effect or enforceability solely by reason that information or a document in an electronic form was used in its formation.

If the law does require a signature, then clicking “OK” can constitute one, but there should be some context – ideally, express words – around the clickable icon to indicate that fact.

The statutes (SK and UECA) support this in their definition of “electronic signature”, which is information in electronic form in, attached to or associated with a document in order to sign it. The context of the “OK” can show the clicking was done in order to sign.

Without such context or language, it is likely that the “OK” will be held to be done in order to agree, but not necessarily to sign.

There is nothing in the form of a handwritten signature that indicates the intention with which it is made. The intention, and thus legal effect, depend on context. It is not surprising or inappropriate that the same is true of electronic signatures and other means of manifesting assent.

It is arguable that all of this flows from common law principles, and that the statute was not necessary for the purpose. (New Brunswick omitted any equivalent to UECA s. 20 from its Electronic Transactions Act, I believe for that reason.) Nonetheless spelling it out in legislation can provide a helpful degree of certainty and allow courts a shortcut in their way to that conclusion.

Fortunately, the SK QB took that shortcut, and got to the right place.

Do you agree? Would you have decided the case differently, or wanted more evidence?

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