April 1, 2020
Author: Fiona Balaton
As the situation with COVID-19 rapidly evolves, many people are being forced to create alternative solutions to conducting business. With many people working from home and conducting meetings by video, electronic signatures are being used more frequently.
Electronic Transactions Act
The Electronic Transactions Act (“ETA”) sets out how electronic signatures are recognised in Alberta. The ETA defines electronic signature as “electronic information that a person creates or adopts in order to sign a record and that is in, attached to or associated with the record.” Under the ETA unless a document is specifically excluded, documents can be signed electronically in Alberta and will be recognised as having proper signatures.
Documents That Cannot Be Signed Electronically
The documents that cannot be signed electronically are
- wills and codicils;
- trusts created by wills or codicils;
- enduring powers of attorney under the Powers of Attorney Act;
- personal directives under the Personal Directives Act;
- records that create or transfer interests in land, including interests in mines and minerals;
- guarantees under the Guarantees Acknowledgment Act;
- negotiable instruments (examples include: promissory notes, bills of exchange, banknotes, demand drafts, and cheques);
- health records that are prescribed, or that belong to a class that is prescribed, as records or a class of records to which this Act does not apply. (Example: certain sections of the Alberta Alcohol and Drug Abuse Act, the Mental Health Act, the Public Health Act, and others concerning the need for signatures in the context of personal freedoms and liberties).
Electronic signatures can include: an emailed scan of an original signature, the click of an “I Accept” button, or a typed name at the end of an email.
The ETA states that consent, either explicit or inferred, is necessary in order to provide or accept information or a record in electronic form. The use of electronic signatures to execute or sign-off on non-electronic documents, such as letters, has not been specifically addressed by the Alberta Courts and it is unclear whether the ETA applies in this context. However, it would seem unlikely that a correspondence using an image of the author’s signature in place of an original signature would attract such stringent requirements, providing the purpose of the correspondence was informational rather than contractual.
Purpose of a Signature on Documents
Whether a signature is paper-based or electronic, the fundamental purpose of the signature is the same. A signature links a person to a document (or transaction) and typically provides evidence of that person’s intent to approve or to be legally bound by its contents. The primary function of a signature is to provide evidence of the signatory’s:
- intent to sign
- agreement to be bound by the contents of the document
Electronic Signatures in Alberta Case Law
In Thompson Brothers (Construction) Ltd. v Alberta the Alberta Court of Appeal clarifies that electronic signatures are acceptable under the Rules of Court, providing that “…. civil practice must keep up with technological advances, and the Court accepts electronic signatures of counsel. Apart from Rule 13.19 which requires actual signatures on affidavits, the rules generally do not contemplate original signatures”.
Intent is a major factor in the enforceability of any electronically signed document. The New Brunswick Court of Appeal addressed the issue of electronic signatures in the context of fraud in Girouard v Druet finding that a contract for the sale of a condo executed through email exchange was invalid based on the finding that there was an insufficient intention on the part of the defendant to be bound. The Court of Appeal found that a quick exchange of e-mail does not give rise to binding obligations, at least in the context of real estate transactions. The court did leave open the possibility, however, that an electronic signature could satisfy the Statute of Frauds requirements for certain contracts to be in writing.
Using an Electronic Signature on Documents
- Other than the exceptions above, there are no limitations to the use of electronic signatures. However, consider additional security measures where there is a risk of fraud connected to the use of a basic electronic signature.
- Alberta Courts recognise and accept electronic signatures unless an original signature is required by the Rules of Court.
- Intent is required when a party signs a document. If using an electronic signature in the context of a contract or agreement, it would be prudent to include a provision that states that the parties have consented to the use of electronic signatures.
- Electronic signatures used in regular correspondence likely do not attract the requirement to inform the party receiving the correspondence that it has been electronically signed.
COVID-19 Workplace Obligations
If you would like more information about the legal obligations surrounding the use of electronic signatures, or assistance in managing COVID-19 in the workplace, please contact a member of the Carbert Waite Employment Law Group.