In our increasingly digitized world, it is important to know the rules regarding electronic documents and signatures. Each Canadian province and territory has adopted its own electronic commerce legislation, which are very similar to one another and largely permissive in regards to the use of electronic documents and signatures. Alberta’s e-commerce legislation is called the Electronic Transactions Act (the ETA). Section 10 states that information or a record to which the ETA applies must not be denied legal effect or enforceability solely by reason that it is in electronic form.
The “functional equivalency rules” of the ETA provide the criteria for the use of electronic documents and signatures.
A legal requirement that information or a record be in writing is satisfied if the information or record is in electronic form and accessible for future reference.
Production, retention and examination rules
- A legal requirement that a person provide information or a record (1) in writing to another person is satisfied if it is provided in electronic form and is retainable and later accessible by the other person, or (2) in a specified non-electronic form to another person is satisfied if it is provided in electronic form and is (i) organized in at least substantially the same manner as the non-electronic form and (ii) retainable and later accessible by the other person.
- A legal requirement that a person provide, retain, or examine an original record is satisfied by doing so electronically if (1) the integrity of the information contained in the record is reliably assured and (2) where the legal requirement is to provide an original record, the electronic record is retainable and later accessible by the recipient.
- A legal requirement to retain a record that is originally created, sent or received in writing or electronically is satisfied by the retention of an electronic record if (1) the electronic record is retained in the same format as the original record or in a form that accurately represents the information in the original record, (2) the information in the electronic record is later accessible by any person with the requisite authority, and (3) where the original record was in electronic form and was sent or received, any information identifying its origin, destination, and date and time it was sent or received, is also retained.
Electronic signature rules
A legal requirement that a record be signed is satisfied by an electronic signature only if in light of all the circumstances (1) the electronic signature is reliable to identify the person, and (2) the association of the electronic signature with the relevant record is reliable for the purpose for which the record was created.
The ETA also includes a number of rules regarding the formation of electronic contracts, the time at which electronic records and information will be considered sent or received, and several other matters.
Exceptions and Special Considerations
The functional equivalency rules above do not apply equally to all situations. Section 7 states that the ETA does not apply to wills, powers of attorney, negotiable instruments, records creating or transferring an interest in land, guarantees under the Guarantees Acknowledgement Act and a number of other documents. This list of exceptions is similar for nearly every province but is notably absent from New Brunswick’s legislation. Sections 19 through 24 of the ETA provide additional requirements for when the recipient is a public body. The Alberta Rules of Court allow for the use electronic methods for service except with “commencement documents”, such as statements of claim, originating applications, and so on (see Part 11, Division 3).
As for federal legislation, Part 2 of the Personal Information Protection and Electronic Documents Act and Sections 31.1 through 31.5 of the Canada Evidence Act provide special rules for electronic documents. Finally, while courts have commented on Canadian e-commerce legislation rather sparingly, the Alberta Court of Queen’s Bench in 2015 interpreted Section 8 of the ETA – which says that nothing in this legislation requires a person to use, provide or accept information or a record in electronic form without the person’s consent – to mean that consent, either explicit or inferred, is necessary in order to provide or accept information or a record in electronic form. On this basis, the court found that because the two parties in the case had signed an agreement with very clear notice provisions that did not contemplate the use of email, the court could not infer consent for the use of this type of communication. Thus, the defendant’s use of email for notice of termination of the contract was deficient.
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