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By Jordan Mario Jutras

As Michael Scott once professed in The Office, “real business is done on paper — write that down”, which a classroom full of MBA students promptly types on their laptops.¹ As (un)insightful as Michael’s comment may be, in reality, today’s “real business” is generally done via email or other electronic means. Everyday, countless agreements are executed through typed signatures, encrypted digital signatures, or electronically “handwritten” signatures (e.g., using a tablet and stylus).

How does the law treat all these different types of signatures? Are they as valid and legally-binding as original, handwritten, wet-ink signatures on paper?

Long before electronic signatures became commonplace, our legal system has taken a flexible approach to signature requirements on documents by accepting marks, symbols, or stamps in place of handwritten signatures. Legislation across Canada today continues that trend by recognizing that documents and signatures in electronic format generally satisfy any legal requirement for a record to be “in writing” and “signed”. Except for some special circumstances where a handwritten signature is strictly required (e.g., for affidavits), there does not appear to be a meaningful distinction between handwritten or electronic signatures.

Legislation and Case Commentary

Around the turn of the millennium, British Columbia, like several other provinces,² enacted the Electronic Transactions Act³ to govern the use of electronic signatures, among other things. The Act defines an “electronic signature” broadly as any “information in electronic form that a person has created or adopted in order to sign a record and that is in, attached to or associated with the record”.⁴ This expansive definition opens the door for flexible interpretations. What may not have commonly been regarded as a formal “signature” may now to be recognized as such.⁵

The Act makes it clear that, subject to certain prescribed exceptions, “if there is a requirement under law for the signature of a person, that requirement is satisfied by an electronic signature”.⁶ The Act also clarifies that certain requirements — such as that a document must be “in writing” or the use of other similar words and expressions — do not by themselves necessarily prohibit the use of information or records in electronic form.⁷ Legislation in other provinces contains similarly worded provisions.

The introduction of these statutes did not necessarily revolutionize the law concerning what was considered to be an acceptable signature. Rather, they confirmed and reinforced longstanding legal principles and the flexibility with which courts have approached this issue.

For example, in IDH Diamonds NV v. Embee Diamond Technologies Inc.,⁸ Justice Layh of the Court of Queen’s Bench (now King’s Bench) for Saskatchewan reviewed earlier cases commenting on the acceptability of different forms of signatures and offered the following conclusion:

[C]ourts have considered an electronic signature as a valid signature simply under longstanding principles of common law. […] The common law has always applied a wide range of analysis to determine the sufficiency of a signature. For example, an ordinary signature at the foot of a document probably provides more comfort as to the authenticity of its contents than a signature at the head of a document even though both are “signed.” Common law courts have considered several deviations from “wet ink” signatures, including simple modifications such as crosses, initials, pseudonyms, printed names and rubber stamps.

I find, therefore, that the provisions of the EIDA [Saskatchewan’s equivalent to BC’s Electronic Transactions Act] are helpful in this application, but they do not replace a broader analysis that has always been part of the common law. In my view, the real intent of the EIDA is to ensure that electronic forms of signatures may be sufficient to meet the measure of what might be a written and signed document.⁹

Justice Layh also noted that nothing in particular turns on what format a signature takes. Fundamentally, a signature serves two primary purposes: “[o]ne is to identify the person who is signing; that is to say, to identify the source and authenticity of the document. The other purpose is to establish the signatory’s approval of the document’s contents”.¹⁰

This discussion and analysis of the law was adopted in British Columbia in the case of Johal v. Nordio,¹¹ which held that a signature block in an email was sufficient to constitute an “electronic signature” within the meaning of the Act, ultimately representing acknowledgement of a debt owing in that case.

Even in situations where a handwritten signature might typically be thought to be required — such as on official court orders, often leading lawyers to include terms in the order allowing for them to be signed electronically instead — at least one jurisdiction has observed that such a practice is not necessary. In Thompson Brothers (Construction) Ltd. v. Alberta (Workers’ Compensation Board Appeals Commission),¹² the Court of Appeal of Alberta commented that terms permitting electronic signatures are “not necessary, as civil practice must keep up with technological advances, and the Court accepts electronic signatures of counsel. […] [T]he rules generally do not contemplate original signatures”.¹³

Forgery

Concerns related to forgery or proper attribution are, according to some, no more prevalent with electronic signatures than they are with original, handwritten ones. As the Uniform Law Conference of Canada observed:

The Uniform Act does not say how to show who signed an electronic document. Attribution is left to ordinary methods of proof, just as it is for documents on paper. The person who wishes to rely on any signature takes the risk that the signature is invalid, and this rule does not change for an electronic signature.¹⁴

That being said, it should be borne in mind that forging an “authentic copy” of someone’s signature is markedly easier when electronic records of that signature exist. If a file containing an authentic, electronic signature makes its way into unscrupulous hands, it becomes much more difficult to prove that any unintended application of that signature was fraudulent. Consider the challenges of proving that as compared with forged handwritten signatures, where handwriting experts can opine on the authenticity of a given signature.

Fortunately, some specialized electronic signatures offer enhanced security features and can combat against forgery and misuse through encrypted digital certificates.¹⁵ These digital certificates are maintained by a registration system and are assigned to a subscriber who retains sole control of the certificate. Application of a subscriber’s signature in any electronic context typically requires a password. Use of these specialized services is tightly regulated,¹⁶ and any misuse can result in serious consequences for the subscriber.

Conclusion

Generally speaking, the law does not treat electronic signatures any differently than original ones made by pen and paper. Certainly, there is no presumption that an electronic signature is any less formal or valid than a handwritten one. In fact, the law has explicitly recognized that signatures can come in many different forms. Even in the absence of anything resembling a standard signature, there may be enough surrounding evidence in a given document to identify the “signatory” and to prove their intention to be bound by the contents of the document. Each circumstance is unique and requires careful legal analysis.

All of this is not to say that handwritten signatures no longer serve any purpose, however. Indeed, an original handwritten signature may be required in certain contexts where any type of electronic signature is strictly prohibited by law.

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^[1] The Office, Season 3, Episode 17 “Business School”

^[2] See e.g., Alberta’s Electronic Transactions Act, SA 2001, c. E-5.5; Saskatchewan’s The Electronic Information and Documents Act, 2000, SS 2000, c. E-7.22; Manitoba’s The Electronic Commerce and Information Act, SM 2000, c. 32; and Ontario’s Electronic Commerce Act, 2000, SO 2000, c. 17

^[3] SBC 2001, c. 10 (the “Act”)

^[4] Ibid, s. 1

^[5] See e.g., note 11, infra, where an email signature was recognized as a valid signature

^[6] The Act, supra note 3 at s. 11(1)

^[7] Ibid at s. 5; but see generally s. 2 exceptions

^[8] 2017 SKQB 79

^[9] Ibid, at paras. 43-44

^[10] Ibid at para. 41, citing Girouard v. Druet, 2012 NBCA 40 at para. 28

^[11] 2017 BCSC 1129

^[12] 2012 ABCA 150

^[13] Ibid at para. 7

^[14] Uniform Electronic Commerce Act (Consolidation, 2011)

^[15] Consider, for example, the Law Society of British Columbia’s administration of the Juricert program for electronic filings to the Land Title Office

^[16] Code of Professional Conduct for British Columbia, rule 6.1-5

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