Electronic Signatures In Canada

In Canada, electronic signatures/e-signatures are regulated by a combination of laws that cover both English speaking and French speaking provinces. At the Federal level, all provinces are bound by the Personal Information Protection and Electronic Documents Act (PIPEDA) 2004. On the provincial level, all provinces with the exception of Quebec have implemented laws that mirror the spirit of the Uniform Electronic Commerce Act (UECA). Quebec has instead enacted its own laws (CQLR c C-1.1), laws which are also similar in spirit to UECA.

What are considered electronic signatures

According to Part 2 of PIPEDA an e-signature is "a signature that consists of one or more letters, characters, numbers or other symbols in digital form incorporated in, attached to or associated with an electronic document." Government of Canada's interpretation of this text is that an e-signature can be virtually any form of electronic representation that can be linked or attached to an electronic document or transaction, including:

• user authentication to an internal application to approve something
• using a stylus on a tablet touchscreen to write a signature by hand and capture it in electronic form
• a typed name or signature block in an email
• user authentication to access a website, coupled with a mouse click on some form of acknowledgment button to capture intent
• a scanned hand-written signature on an electronic document
• a sound such as a recorded voice command

The PIPEDA recognizes two main types of electronic signature, which are:

General Electronic signatures: This cover the entire range of technologies used to create signatures electronically. It covers simple images of a person's signature affixed to an electronic document, to type-written text and e-signatures that are based on asymmetric cryptography.

secure electronic signature: are a specific type of e-signature that has an added layer of protection, through a signer authentication certificate. This digital certificate is issued when the identity of the signer is validated. The law requires that a special type of encryption called public key infrastructure (PKI) is used to identify the signer with the document - providing added assurance of the signer's identity.

Admissibility of Electronic Signatures

In Canada, an e-signature has the same legal status as a handwritten signature done in wet-ink on a "hard" document. Furthermore, the law suggests that both electronic and secure electronic signatures have the same legal status as handwritten signatures. In some cases, Part 2 of PIPEDA law requires the use of secure electronic signatures over types. Such cases include:

• documents used as evidence or proof
• seals
• original documents
• statements made under oath
• statements declaring truth
• witnessed signatures

However, for general use cases in commerce, the law provides no specific requirement that any particular type of electronic signature must be used and as such both types can be used for the majority of corporate, commercial, consumer, HR, and financial transactions. As in many other cases where evidence is being presented in court, the greater the amount of corroborating records provided, the less likely it is to be successfully challenged.

Limitations

There are certain documents that the law prohibits from being signed electronically. Such documents include:

• Wills and codicils
• Trusts created by wills or codicils
• Powers of attorney pertaining to finances or personal care
• Negotiable instruments
• Notarizations