Electronic Signatures in Canada

In Canada, the legality and recognition of electronic signatures are firmly established, both at the federal level through the Personal Information Protection and Electronic Documents Act (PIPEDA) and through individual provincial legislation in each province and territory.

Types of Permitted Electronic Signatures

In Canada, Part 2 of the Personal Information Protection and Electronic Documents Act (PIPEDA) provides a regime that establishes electronic equivalents to paper-based documents and signatures at the federal level. Part 2 of PIPEDA defines an electronic signature as "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." Essentially, an electronic 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, such as when a supervisor logs into an application to approve a leave request.
• 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 (for example, a verbal confirmation in response to a question).

PIPEDA also recognizes, and in certain circumstances, requires the use of a "secure electronic signature." A secure electronic signature is an electronic signature that results from the application of a technology or process prescribed by regulation, with the regulations setting out a specific set of consecutive operations that must be completed for the signature to qualify.

Requirements

Depending on the context of the business activity or transaction, implementation considerations can include the following:

• The reason or context for the electronic signature is clear (the signature is for approval, agreement, consent, authorization, confirmation, acknowledgment, witness, notarization, certification, or other purpose).
• It is clear that the individual(s) understand that they are signing the electronic data (indication of intent to sign).The level of authentication is commensurate with the associated assurance level.
• The individual(s) have the authority to sign the electronic data.
• The method used to establish the electronic signature is commensurate with the associated assurance level.
• Supporting information, such as the date and time that the electronic data was signed, evidence that the signature was valid at the time it was signed, and the association of the electronic signature and supporting information with the signed electronic data, is captured, where required.
• The ability to validate the electronic signature is supported over time.

Legislation

The federal government has enacted the Personal Information Protection and Electronic Documents Act (PIPEDA, SC 2000 c5), which, among other things, states that a signature required by a federal law is satisfied by an electronic signature (PIPEDA, Section 43). Some other federal statutes have independently incorporated language explicitly permitting electronic documents and signatures (e.g., the Canada Business Corporations Act has its provisions setting out terms for the use of electronic documents).

In the provinces and territories of Canada, laws supporting electronic transactions and the use of electronic documents have been enacted. Some of these laws include:

• Alberta: Electronic Transactions Act, SA 2001, cE-5.5
• British Columbia: Electronic Transactions Act, SBC 2001, c 10
• Manitoba: Electronic Commerce and Information Act, CCSM c. E55
• New Brunswick: Electronic Transactions Act, RSNB 2011, c 145
• Newfoundland and Labrador: Electronic Commerce Act, SNL 2001, c E-5.2
• Northwest Territories: Electronic Transactions Act, S.N.W.T. 2011, c.13
• Nova Scotia: Electronic Commerce Act, SNS 2000, c. 26
• Nunavut: Electronic Commerce Act, SNu 2004, c 7
• Ontario: Electronic Commerce Act, SO 2000, c 17
• Prince Edward Island: Electronic Commerce Act, RSPEI 1988, c E-4.1
• Saskatchewan: Electronic Information and Documents Act, 2000, S.S. 2000, c. E-7.22
• Yukon: Electronic Commerce Act, RSY 2002, c 66

Use Cases

The following transaction types in Alberta, British Columbia, Ontario, and Quebec are generally eligible for the use of electronic signatures:

• HR documents, such as regular employment contracts, non-disclosure agreements, employee invention agreements, privacy notices, benefits paperwork, and other new employee onboarding processes.
• Commercial agreements between corporate entities, including non-disclosure agreements, purchase orders, order acknowledgments, invoices, other procurement documents, software license agreements, tool license agreements, component supply agreements, sales agreements, distribution agreements, and service agreements.
• Corporate documents, such as instruments of transfer, directors' resolutions, shareholders' resolutions, government filings indicating updates to corporate information (e.g., change of address or directors), share subscriptions, and shareholders' agreements (subject to some narrow exceptions, such as share certificates requiring manual execution in British Columbia).
• Consumer agreements including new retail account opening documents, sales terms, services terms, software licenses, purchase orders, order confirmations, invoices, shipment documentation, user manuals, and policies.
• Certificates, licenses, notices, disclosure, reports, etc. from governmental entities, unless specifically exempted under their respective legislation.

Note: ZapSign cannot provide legal advice. You should consult with a lawyer regarding your legal matters.