BY: ARJUN HAIR

Everyone understands the importance of the classic ink-on-paper signature. For centuries, writing your name (usually in cursive) has been proof enough that you agreed to be bound by a contract. Widespread adoption of electronic signatures (aka e-signatures) is changing the landscape. While some documents require extra security, like witnesses or notarization, but most of the contracts you would have signed in ink 20 years ago now only require a few clicks of a mouse.

The early 2000s saw a sweeping transition from analog to digital technology. Accordingly, laws were put in place both provincially and nationally that allowed for a transition away from “analog” ink signatures to “digital” electronic signatures. Here are the main pieces of legislation that set out the law on e-signatures:

• Electronic Transactions Act, SBC 2001, c 10 (BC)
• Evidence Act, RSBC 1996, c 124 (BC)
• Canada Evidence Act, RSC 1985, c C-5 (Canada)
• Personal Information Protection and Electronic Documents Act, SC 2000, c 5 (Canada)
• Secure Electronic Signature Regulations, SOR/2005-30 (Canada)

Below you can find summaries of what these Acts say about electronic signatures, and what that means for you.

Electronic Transactions Act (BC)

In short, the Electronic Transactions Act (the “ETA”) says that electronic signatures satisfy any legal requirement for the signature of a person. Other legislation might add verification requirements that go along with electronic signatures in specific situations, but the ETA makes it clear that electronic signatures are perfectly valid in most transactional situations.

You should note that there are exceptions to this general rules. Electronic signature cannot be used for wills, powers of attorney, or land title documents that transfer or create interests in land. The general rule is if you are required to have a lawyer or notary witness your signature, then electronic signatures will not work.[1]

The lesson to take from the ETA is that electronic signatures are valid for most contracts.

Evidence Act (BC)

The Evidence Act (the “EA”) considers the use of electronic signatures as evidence of identity. Under the EA, any “secure electronic signature” is presumed to have been signed by the person identified by the signature, unless there is evidence to the contrary. Electronic documents signed with electronic signatures are admissible in court as long as the court has no reason to doubt the integrity of the document.

Secure Electronic Signature Regulations (Canada)

The Secure Electronic Signature Regulations (the “Regulations”) were created under the Canada Evidence Act and Personal Information Protection and Electronic Documents Act.

The Regulations set out the criteria for what is considered a “secure electronic signature”. Without getting too technical, the signature and the document itself need to be encrypted, and the recipient of the document must be able to decrypt the signature and document in order to verify the signature.

Secure electronic signatures have a “signature certificate” that identifies the identity of the person who signed. Only certain “Certification Authorities” are capable of creating these signature certificates.

Companies like DocuSign and Adobe offer the ability to create secure electronic signatures that comply with these requirements.

Bottom Line

If you are ever in doubt about whether an electronic signature will work, ask yourself these two questions:

1. Is this the right type of document for an electronic signature?

Most contracts work just fine with an electronic signature. Common examples include leases, employment contracts, liability waivers, non-disclosure agreements, and many others.

2. Is the electronic signature method secure?

If you are not using a tool like DocuSign or Adobe that can encrypt the signature and attach a signature certificate, then there is no way to prove the signature is authentic. Make sure to protect yourself by using secure methods.

KSW Lawyers has decades of experience with contracts. Whether you need a contract drafted, reviewed, or disputed, get in touch!

[1] Temporary changes due to COVID-19 allow remote witnessing by lawyers. Visit the BC Land Title website for more information.

NOTE: This article is not legal advice. If you are looking for legal advice in relation to a contract dispute, please contact one of our business lawyers.

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