The pandemic has changed how the world does business. People can buy, sell, and contract without ever meeting face to face. This new digital age emerged from necessity and has grown because of technology like Zoom, TitanFile, and
Take
Internal to
- using email addresses;
- a phone call;
- using knowledge-based questions;
- uploading photo ID or using electronic or bank-based IDs.2
Additionally,
The Electronic Commerce Act
One of the main pieces of legislation in
It is important to be aware that although digital ink can be used in place of wet ink, electronic signatures are not automatically permitted. Section 3 of the
Whether electronic signatures are permitted also varies depending on the type of document, the parties to the contract, and where the contract is signed.
- The type of document: the
ESA does not cover all situations where legal documents are being signed. For example, theESA does not apply to Wills, Powers of Attorney, and negotiable instruments such as promissory notes.8 - Parties to the contract: where a public body, such as a municipality or board, is signing the document, there must be explicit confirmation that it is permissible to use electronic signatures as no consent can be implied.9
- Where the contract is signed: "an electronic document is deemed to be sent from the sender's place of business and received at the addressee's place of business";10 this may be an issue where the parties to the legal document reside in different provinces, or even different countries.
Best practices
Electronic signing and witnessing of documents is becoming more commonplace. However, signing and witnessing legal documents may not be as simple as a few clicks. When seeking to rely on electronic signing and witnessing of documents,
- use official and licenced software that has the functionality to support your needs;
- make sure the document is capable of being witnessed and signed electronically and all parties understand and consent to the process; and
- consult with a lawyer to ensure the document is valid and enforceable and there are no unintended consequences.
Footnotes
1 What does document signing software do? (docusign.com).
2 Are Electronic Signatures Safe? | E-Signature Security (docusign.com).
3 FAQ About E-Signatures in
4 Electronic Commerce Act, 2000, S.O. 200, c. 17, s. 11(1).
5 Ibid at ss. 11(3)(4).
6 Ibid at ss. 3(1).
7 Ibid at ss. 3(2).
8 Ibid at ss. 31(1).
9 Ibid at s. 14.
10 Ibid at ss. 22(4).
Co-authored by
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Mr
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