Are e-signatures legal, admissible, and enforceable in Canada?
Yes
E-Signature is generally valid and enforceable for documents and contracts in Canada, subject to certain exceptions outlined in question 2 below. The validity/enforceability of electronic signatures in Canada is governed by laws that are generally applicable to electronic contracts. These include legislation specific to electronic transactions, as well as traditional common law principles and legislation applicable to contracts generally.
All of the Canadian provinces and territories have enacted electronic transactions statutes:
- Alberta: Electronic Transactions Act, SE 2001, c E-5.5
- British Columbia: Electronic Transactions Act, SBC 2001, c 10
- Manitoba: Electronic Commerce and Information, SM 2000, c 32
- New Brunswick: Electronic Transactions Act, RSNB 2000, c 145
- Newfoundland and Labrador: Electronic Commerce Act (An Act to Facilitate Electronic Commerce by Removing Barriers to the Use of Electronic Communication), SNL 2001, c E-5.2
- Nova Scotia: Electronic Commerce Act, SNS 2000, c 26
- Northwest Territories: Electronic Transactions Act, SNWT 2011, c 13
- Nunavut: Electronic Commerce Act, SNu 2004, c 7
- Ontario: Electronic Commerce Act, 2000, SO 2000, c 17
- Prince Edward Island: Electronic Commerce Act, RSPEI 1988, c E-4.1
- Quebec: An Act to establish a legal framework for information technology, CQLR c C-1.1
- Saskatchewan: The Electronic Information and Documents Act, 2000, SS 2000, c E-7.22
- Yukon Territory: Electronic Commerce Act, RSY 2002, c 66
With the exception of Quebec, these statutes are based substantially on the model Uniform Electronic Commerce Act (“UECA”), which was adopted by the Uniform Law Conference of Canada in 1999 and which sets out the basic premise that information shall not be denied legal effect or enforceability solely by reason that it is in electronic form.
The federal Personal Information Protection and Electronic Documents Act, SC 2000, c 5 (“PIPEDA”), also applies to the use of electronic signatures but only in the context of signature requirements under prescribed federal statutes and regulations.
Are there certain documents that cannot be e-signed in Canada?
Yes
E-Signature is generally valid and enforceable for documents and contracts in Canada with certain exceptions, which must be executed by Qualified Electronic Signature (QES) or a wet (physical) signature and sometimes before a notary:
Secure Electronic Signature or Wet Signature Required:
- When a prescribed federal law under PIPEDA requires a person’s seal, a document in its original form, an oath or declaration, or a witnessed signature.
Wet Signature Required:
For common law provinces (i.e., all but Quebec), examples generally include:
- wills and codicils;
- trusts created by wills and codicils;
- powers of attorney and/or personal directives to the extent that they are in respect of an individual’s financial affairs or personal care;
- records/contracts that create or transfer interests in land;
- guarantees;
- negotiable instruments;
- documents of title (except contracts relating to the carriage of goods); and
- domestic contracts (marriage contracts, cohabitation agreements, separation agreements).
Quebec (requires notarization or a witnessed wet signature for the following examples):
- renunciation of certain entitlements, such as a spouse’s rights in the family patrimony, a spouse’s right to partition of the other spouse’s property upon dissolution of a partnership of “acquests”, a successor’s right to a succession, and the rights of a beneficiary of a trust;
- marriage contracts and dissolution of a civil union by joint declaration;
- wills must be in the form of a notarial will, holograph will, or will made in presence of a witness;
- declarations of co-ownership in real property;
- inventory made by an administrator of a trust;
- subrogation;
- providing a gift of property;
- an individual’s mandate for his/her personal care or administration of his/her property in anticipation of that individual’s incapacity; and
- granting of certain kinds of “hypothecs” (e.g., mortgage for real property).
Does local regulation govern the use of digital IDs and/or certificates for e-signatures in Canada?
Yes
At this time, Canada does not have a digital ID system, and we are not aware of local laws related to same.
Please see our response to question 2 above relating to the mandatory use of "secure electronic signatures" in Canada with respect to certain documents under PIPEDA. The Secure Electronic Signature Regulations (SOR/2005-30) accompanying PIPEDA are regulations prescribing technologies or processes for the purpose of the definition of "secure electronic signature".
Does local law provide certification bodies / trust services that users of e-signatures should be aware of in Canada?
Yes
Consult the website of the Treasury Board Secretariat (authorité de certification) for the list of recognized certification authorities (CAs) that have capacity to issue digital signature certificates for documents that require a "Secure Electronic Signature" (see above).
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*DISCLAIMER: The information contained in this guide is for information purposes only, provided as is as of the date of publication and should not be relied upon as legal advice or to determine how the law applies to your business or organization. It is recommended that you seek guidance from your legal counsel with regard to law applying specifically to your business or organization and how to ensure compliance. OneSpan does not accept liability for the contents of these materials or for third parties materials.
Last updated: November 2020