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Electronic signatures have revolutionized document verification by making agreement execution more efficient in Canada and internationally. These digital solutions enable quick and eco-friendly document signing, reducing paper use and speeding up transactions. However, when adopting electronic signatures in Canada, understanding key considerations is crucial.

 

Users must choose an electronic signature platform that adheres to Canadian law, notably the Personal Information Protection and Electronic Documents Act (PIPEDA), which gives esignatures the same legal status as handwritten ones. Furthermore, it’s essential to recognize that some documents might still need a physical signature, and regional legal variations may apply, so legal consultation is advisable.

Security is also vital. The selected electronic signature service must provide strong security features, like data encryption, user authentication, and audit trails, to protect against unauthorized access and maintain document integrity. Services like BoldSign offer such features to ensure compliance and security.

In essence, while electronic signatures are beneficial and accepted, compliance with legal standards, security, and selecting an intuitive platform are imperative for their effective use in Canada.

According to Canadian rules regarding electronic signatures, these are legally recognized digital marks made up of letters, characters, numbers, or symbols linked to an electronic document. In Canada, such signatures are valid on most documents if they can be directly associated with the signer and if there’s evidence to certify their authenticity, ensuring no alterations or forgeries. It’s also critical that the signer’s intention to sign is evident, showing a purposeful agreement to the document’s terms. When these criteria are satisfied, electronic signatures hold the same legal validity as handwritten ones.

An electronic signature can be any type of electronic mark linked to an electronic document or process. This includes:

  • Logging into an app to authorize actions.
  • Handwriting a signature on a tablet.
  • Typing a name in an email.
  • Clicking an acknowledgment on a website after authentication.
  • Attaching a scanned handwritten signature.
  • Using a voice command as a verbal agreement.
  • Generally, electronic signature is accepted to hold the same legal image as to wet ink signature.
  • In Canada there are two different types of electronic signatures.
  • Standard Electronic Signatures.
  • Secure Electronic Signatures/Digital Signatures.
  • The use of electronic signature in completing transactions within Canada is regulated by:
  • Personal Information Protection and Electronic Documents Act1
  • Secure Electronic Signature Regulations2
  • Electronic Payment regulation3
  • Payment and Settlements Requisitioning Regulation4
  • Uniform Electronic Commerce Act5
  • Electronic Documents and Electronic Information Regulations

Secure electronic Signature/digital Signature under the secure electronic signature regulations defined using the term “digital signature,” which technically is the same as both use asymmetric cryptography and depend on Public Key Infrastructure for key and certificate management. Moreover, these regulations specify an asymmetric algorithm, require the Certification Authority recognition by the Treasury Board of Canada Secretariat for secure digital signature certificate issuance6, and presume the signatory’s identity matches the digital certificate unless proven otherwise7.

Standard Electronic Signature on the other hand is defined to be a signature that consists of one or more letters, characters, numbers, or other symbols in digital form that is incorporated in, attached to or associated with an electronic document or electronic information8.

The Personal Information Protection and Electronic Documents Act Part 2, Sections 31(1), 48(1) and 48(2) collectively define a “secure electronic signature” as “an electronic signature that results from the application of a technology or process…” with the following characteristics:

  • Uniquely linked to the person.
  • The use and incorporation remain in his/her sole control.
  • Able to identify the person using the technological process.
  • Easy to track down any alterations made after signing.

A secure electronic signature must be uniquely connected to the person who is using it. The signature must be uniquely made with methods that only the signer has access to, like a private key and confidential info, to verify their identity.

The person using the secure electronic signature must have sole control over the means of creating the signature. Typically, this requires managing a key pair or two-factor authentication, with the signer exclusively holding the private key to prevent unauthorized signature forgery.

The process used to create the signature must be capable of identifying the person signing. This may include use of a biometric signature, a Personal Identification Number (PIN), an email address or even a company registration number.

It is essential to preserve the authenticity of the signed document. Modifications made to the document post-signature should be identifiable. This is commonly accomplished through audit trail. Audit trails record the signer’s IP address, timestamps of key signing events, and location, providing proof of identity, timing, and place of signature.

The Uniform Electronic Commerce Act of Canada under Section 2 Subsection 3 & 4 exempt transactions from being completed vide electronic signatures. These transactions are:

  • Wills and their codicils.
  • Trusts created by wills or by codicils to wills.
  • Negotiable Instruments (These are financial instruments that are designed to facilitate the transfer of money from one party to another).
  • Power of attorney.
  • Documents that create or transfer interest in land.

As a result, provincial governments throughout Canada have implemented electronic commerce laws to create a uniform approach and offer explicit instructions regarding transactions that are not permitted, which may differ from province to province. A principal example of a transaction that is uniformly recognized across all provinces as not being eligible for conclusion via electronic signature is promissory notes under the bills of exchange act. This uniformity is due to the absence of equivalent legislation in each province9.

Numerous provinces across Canada have taken the initiative to introduce their own distinctive legislative measures pertaining to the use of electronic signatures. These provincial statutes serve to complement the overarching framework established by Canadian federal legislation, incorporating a series of supplementary constraints and stipulations that enhance the regulatory landscape for the utilization of electronic signatures within these jurisdictions. By doing so, these provinces aim to ensure a more comprehensive and nuanced approach to the governance of digital authentication methods, thereby addressing any jurisdiction-specific requirements and fostering a secure and reliable environment for electronic transactions.

Provinces such as Alberta, British Columbia, and Ontario have enacted legislation based on the Uniform Electronic Commerce Act of Canada (“UECA”), which is a piece of model legislation rather than a binding piece of legislation. The provincial legislations are:

  • Alberta: Electronic Transactions Act (2001)
  • Ontario: Electronic Commerce Act (2000)
  • British Columbia: Electronic Transactions Act (2001)
  • Prince Edward: Electronic Commerce Act [2021]
  • Nova Scotia: Electronic Commerce Act [2000]
  • Newfoundland and Labrador: Electronic Commerce Act [2009]
  • Saskatchewan: Electronic Information and Documents Act [2000]
  • Manitoba: Electronic Commerce and Information Act [2000]
  • Quebec: Act to establish a legal framework for information technology.

There are several different laws within the provinces of Canada. There is a table below to note the difference and a longer explanation below the table.

Province What is prohibited Legislation & Section Unique nature of that province laws
Alberta
  • Wills or codicils (and accompanying acts).
  • Powers of attorney.
  • Negotiable instruments.
  • Documents of tittle.
  • Guarantees under the guarantees acknowledgment Act.
  • Personal directives under the Personal Directives Act.
Electronic Transactions Act. Section 7, (1) & (2) Provides mandatory provision of a signature for submission to a governmental entity.
Ontario
  • Wills and codicils.
  • Trusts created by wills or codicils.
  • Powers of attorney.
  • Negotiable instruments.
  • Documents of tittle.
Electronic Commerce Act (2000) Section 31 Provides mandatory provision of a signature for submission to a governmental entity.
British Columbia
  • Wills.
  • Trusts created by wills.
  • Powers of attorney.
  • Land interest documents requiring registration for third-party validity.
  • Negotiable instruments or documents of title.
Electronic Commerce Act. Section 2 Provides a technology-neutral approach, meaning that it does not prescribe specific technologies or processes for electronic signatures.
Prince Edward Island
  • Wills.
  • Trust created by wills.
  • Powers of attorney.
  • Negotiable instruments.
Electronic Commerce Act. Section 2, (3) & (4) Consent to the use of Electronic Signature may be inferred from conduct.
Newfoundland & Labrador
  • Wills.
  • Trust created by wills.
  • Powers of attorney.
  • Negotiable instruments.
  • Share certificates.
Electronic Commerce Act. Section 4, & 31(1)
Corporations Act Section 87,(4)
Allows commissioning of Oaths, Notarization, and witnessing of documents remotely vide audio-visual in place of electronic signature by lawyers (Bill 23). Alternate Witnessing of Documents Act (the “Act”).
Nova Scotia
  • Wills.
  • Trust created by wills.
  • Powers of attorney.
  • Negotiable instruments.
Electronic Commerce Act. Section 3(2) Companies can decide on their business protocols (whether Electronic or manual) via their articles of association or follow the default Table "A" Regulations under the Companies Act or create their own customized Articles.
Saskatchewan
  • Wills.
  • Person's health care and proxy appointment directives10.
  • Trusts created by wills.
  • Powers of attorney.
Electronic Information and Documents Act, 2000. Section 4 Consent to the use of electronic signature may be inferred from conduct.
New Brunswick
  • Wills and codicil.
  • Testamentary trusts.
  • Power of attorney.
  • Land transaction records requiring registration for third-party validity.
  • Share certificates.
Electronic Transactions Act. Section 2, (3)
Corporations Act Subsection 47(4)
Consent to the use of electronic signature may be inferred from conduct.
Manitoba
  • Negotiable instruments.
  • Documents of title.
Electronic Commerce and Information Act. Section 2 Confers comprehensive legal validity to electronic signatures in transactions.
Quebec
  • Marriage contracts.
  • Declarations of co-ownership.
  • Protection mandates and powers of attorney.
  • Subrogation-related loan document or discharge.
  • A collateral agreement benefiting a creditor, unless it's a movable collateral with possession transferred.
Act to establish a legal framework for information technology.
  • Civil law System.
  • Hand-written signature isn’t compulsory for a contract to be seen as valid. If legally able people have come to an agreement.
  • Consent has to be expressed/given.
  • Wills can be executed electronically.
  • Southwest Terminal Ltd. v Achter Land, 2023 SKKB 116 (CanLII).

In this landmark case, Canada, the use of emojis in legal contracts was scrutinized. The Court ruled in favour of a grain buyer, finding that a thumbs-up emoji sent by the seller signalled agreement to a contract’s terms. This case highlights the growing relevance of digital communication in forming legally binding agreements.

During negotiations for a flax contract, the buyer sent a contract image to the seller asking for confirmation, to which the seller responded with a thumbs-up emoji. When the seller later failed to deliver the flax, the Court had to decide if the emoji indicated a valid contract. Using the objective bystander test and referencing both the Saskatchewan Electronic Information and Documents Act and the Canadian Sale of Goods Act, the Court determined that the emoji was a legally sufficient electronic signature, thus enforcing the contract.

  • Roussel v. Desjardins Sécurité financière, compagnie d’assurance-vie, 2012 QCCQ 3835.

The matter at hand pertained to the legitimacy of an electronic signature on the original document of a legal action. The lower court determined that a signature serves to confirm the signer’s identity, indicates consent, and provides assurance regarding the origin of the signed work. The Court recognizes an attorney’s electronic signature on legal documents as valid, which ought to be officially logged by the registry office. The reluctance of the registry to accept electronic signatures may be due to apprehensions about the potential for fraudulent activities associated with such signatures. Although attorneys are not immune to these risks, they retain the right to contest any signatures that are called into question. Nonetheless, these issues do not render electronic signatures invalid.

  • I.D.H. Diamonds NV v Embee Diamond Technologies Inc., 2017 SKQB 79.

This case was on a founding that an email conversation of an informal nature, which are a regular feature of contemporary business communications, can serve as valid acknowledgments of a debt for the purpose of extending the limitation period according to Saskatchewan’s The Limitations Act (“the Act”). This is applicable even when numerous communications do not explicitly mention the debt. Moreover, these emails can fulfill the Act’s criteria for written acknowledgments that must be signed, despite the absence of a traditional handwritten or digital signature.

This in extension signifies that the typing of a name in an email can is deemed to be a valid form of electronic signature provided that it can be linked to the party who signed it ensuring its legality and formality.

Under the Personal Information Protection and Electronic Documents Act (PIPEDA), as well as the respective acts in Alberta, British Columbia, and Ontario, the scope for what constitutes an electronic signature is quite expansive, accommodating various methods to fulfill such stipulations, provided that the use of an electronic signature is accepted for the specific document. To guarantee the legitimacy of an electronic signature, it is recommended to adhere to the following best practices, in addition to meeting all relevant legal criteria:

  • Verify the identity of the person signing and, in cases involving corporate transactions, confirm that the individual is authorized to represent the corporation in signing.
  • Obtain clear consent from the person signing, which can be included within the contract itself or in a distinct agreement, acknowledging their intent to employ the designated electronic signature method for the document.
  • Ensure that the document is protected against alterations once the signature has been applied; and
  • Maintain a detailed record of the signing process that documents every action taken by the signer.

The following elements of compliance available within BoldSign can be used to comply with Canadian electronic signature laws:

  • Secure and unique signing link: A secure and unique link to sign a document is sent directly to the signer's email address. This helps to ensure that the document is only accessed by the intended signer and that it cannot be tampered with.
  • Password protection: Senders can specify a password that needs to be entered before viewing and signing a document. This adds an additional layer of security to the signing process.
  • Audit trail: The IP address of the signer along with timestamps for all major events in the signing process are recorded in an audit trail. This provides a record of who signed the document, when they signed it, and from where they signed it.
  • Digital signature: The final signed document is digitally signed with an AATL compliant certificate. This ensures that the document cannot be tampered with without invalidating the signature.
  • Consent: Signers are asked to confirm their intent to sign electronically and are also informed that they have an option to opt out. This helps to ensure that the signer is aware of the implications of signing electronically and that they have given their consent to do so.
  • Custom terms: There is an option to get your signers to agree to a custom set of terms. This can be useful for adding additional security or ensuring that the signer understands the terms of the document.

Disclaimer: Information on this page is intended to help businesses understand the legal framework of electronic signatures for this country.

However, Syncfusion, its officers, directors, stockholders, affiliates, attorneys, accountants, employees, or agents cannot provide legal advice. You should consult your own personal attorney regarding your specific legal questions. Laws and regulations change frequently, and this information may not be current or accurate. To the maximum extent permitted by law, Syncfusion provides this material on an “as-is” basis. Syncfusion disclaims and makes no representation or warranty of any kind with respect to this material, express, implied or statutory, including representations, guarantees or warranties of merchantability, fitness for a particular purpose, or accuracy.

Syncfusion makes no warranties of any kind, including but not limited with respect the information or the product, whether express, implied, statutory or otherwise. To the maximum extent permitted by law, Syncfusion disclaims all conditions, representations and warranties, whether express implied or statutory with respect to this information without limitation any implied warranty of merchantability, fitness for a particular purpose, accuracy or currentness of this information.

Syncfusion nor their officers, directors, stockholders, employees, affiliates, attorneys, accountants or agents, shall be entitled to indemnification, express or implied, contractual or statutory, equitable or otherwise, under this Agreement.

1 Personal Information Protection and Electronic Documents Act
2 Secure Electronic Signature Regulations
3 Electronic Payments Regulations
4 Payments and Settlements Requisitioning Regulations
5 Uniform Electronic Commerce Act
6 Secure Electronic Signature Regulations. Section 4
7 Ibid Section 5
8 Electronic Documents and Electronic Information Regulations, Section 1 (1) as read with Section 31, (1), Personal Information Protection and Electronic Documents Act
9 Bills of Exchange Act (BEA) S.4, 16, & 176, (1) as read with schedules 2 or 3 of the Personal Information Protection and Electronic Documents Act
10 Saskatchewan Health Care Directives and Substitute Health Care Decision Makers Act, 2015 Section 2;