Electronic Documents - Electronic Signatures

Electronic documents and electronic signatures (eSig) are now more widely accepted and in many instances are legally enforceable, or evidentiary in BC and Alberta. The increase in electronic documents and signatures can be compared to the increase in people sending eTransfers. The pandemic has also influenced and accelerated the convenience and practicality of electronic documents and signatures.

In British Columbia, electronic records are governed by the BC Electronic Transactions Act. The Alberta Electronic Transactions Act (ETA) governs electronic records in Alberta. However, federal law may apply in certain circumstances and with respect to specific transactions such as the Canada Business Corporations Act, the Bank Act, Insurance Companies Act and the Trust and Loan Companies Act.

There are numerous electronic document and signature software companies that have a proven track record for tracking electronic signatures. Should an electronic transaction be questioned, they will be able to provide the necessary proof that the person electronically signed the document.

The I accept button can replicate the function of an electronic signature, however, that alone will not guarantee enforceability. There are additional steps to increase the probability that an agreement will be deemed enforceable. This includes using version partitioning to quickly and easily determine which version was agreed to by each person signing. Other methods include prompting each user to take a number of active actions such as typing their name, clicking checkboxes or clicking through several screens to confirm their agreement of the terms.

One simple solution to avoid an electronic transaction being questioned is to have a clause that states that parties need not sign the same copy of an agreement, and any of the copies can be treated as an original for evidentiary purposes.

In order for an electronic document and signature to be valid there must be intent. For example: An email chain that involves negotiations on a deal could be considered intent.

Here are some of the following documents that are not considered valid in electronic form in BC:

Wills

Trusts created by Wills

Powers of attorney concerning the financial, or personal care of an individual

Instruments that create or transfer an interest in land and that require registration to be effective against third parties

Other provisions, requirements, information or records prescribed in the regulations

Here are some of the following documents that are not considered valid in electronic form in Alberta:

Wills and codicils

Trusts created by Wills or codicils

Records that create or transfer interests in land, including interests in mines and minerals

Negotiable instruments

Guarantees under the Guarantees Acknowledgment Act

Enduring powers of attorney under the Powers of Attorney Act

Personal directives under the Personal Directives Act

It is hard to say how far the shift to electronic documents will go. There is also a technology component, which in turn creates amended policies, such as BC's new amended policy on electronic devices in courtrooms. Electronic devices cannot be used to transcribe digitally, including using video conference software, in BC courtroom proceedings.

It should be noted that the information above should not be considered legal advice. We are in a digital transition phase and there will be constant changes. When planning to switch over to electronic agreements and signatures it pays to research for any recent changes that may affect you. It is also wise to have a lawyer review the electronic agreements.

If you are planning to switch over you can give us a call, or request a consultation. We can arrange for a lawyer that is an expert on this topic. They can review your agreements and suggest any applicable changes to better secure your position using electronic documents and signatures.