The pandemic has forced all of us to pivot from many of our previous modes of carrying out our day-to-day activities. Vaccine certificates are required in order to sit down for a meal at a restaurant. Masks and daily health screenings are needed before our children head out the door to go to school. Screen sharing and breakout rooms are terms that are now part of our usual lexicon as videoconferences have become the norm for meetings.

Even the way we affix our signature to documents has changed. No longer are we required to put pen to paper and sign in triplicate. Mortgages can be renewed online with a verification code sent by text message and a simple click of a checkbox on a screen. There are companies that offer electronic signature (or eSignature) services as a trustworthy and reliable way to confirm an individual’s acknowledgement of or agreement with the contents of a document.

Section 11 of the Electronic Commerce Act, 2000 provides that an electronic signature may satisfy any legal requirement that a document be signed as long as the eSignature reliably identifies the person signing and the eSignature meets certain information technology standards. However, with so many ways of signing a document digitally, one has to wonder what constitutes a signature. This question was considered in the Divisional Court’s decision in 1475182 Ontario Inc. o/a Edges Contracting v. Ghotbi.

The subject matter of this appeal was an unpaid account for services rendered and whether the claim for the balance owing was stature-barred as a result of the expiry of the two year limitation period. At issue was whether certain text messages sent before the end of the limitation period constituted an acknowledgment of liability that would effectively re-set the clock on the limitation period under section 13 of the Limitations Act, 2002. However, in order for this to happen, section 13(10) requires that the acknowledgment be “in writing and signed by the person making it or the person’s agent”.

The Divisional Court concluded that the text messages did indeed constitute a signature for the purposes of section 13(10) which does not prescribe a particular kind or form of signature. In its reasons, the court stated:

[48] The world is changing. Everyone knows that. We live in a digital world now, much more than was the case when the Act came into force in 2002. It is incumbent upon the court to consider not just traditional means of affixing one’s signature to a document, but other, more modern means, including digital signatures.

[49] In this instance, there is no question about the authenticity of the text messages. There is no question that Dr. Ghotbi was the author of the June 2, 2016 texts in issue. From that perspective, the underlying purpose of s. 13(10) has been satisfied.

[50] I would also find that the express requirement of a signature is met in this case. Dr. Ghotbi used his cellular telephone to send and receive texts with Mr. Lupo. Dr. Ghotbi, like all other cellular telephone users, has a unique phone number linked with his phone. In fact, there will undoubtedly be other unique identifiers associated with Dr. Ghotbi’s phone including, without limitation, an International Mobile Equipment Identifier (IMEI) number. These unique identifiers provide, in effect, a digital signature on every message sent by the user of that particular device. Again, there is no dispute that the user of the device was Dr. Ghotbi and that he sent the texts in issue. In my view, that digital signature is sufficient to meet the requirements of s. 13(10) of the Act.

In short, the court found that even a text message can be an authentic and reliable indicator of a person’s signature. In the result, the Divisional Court upheld the trial judge’s decision and dismissed the defendant’s appeal with costs against the defendant.

While traditional pen and paper remains an acceptable means of affixing one’s signature, we should all be ready to adapt to the digital world that we live in, especially we continue to limit face-to-face meetings in our efforts to limit the spread of COVID-19. Electronic signatures and other digital technologies, like text message acknowledgments, are an unavoidable part of our pivot from previous practices.

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.