E-signatures legally equivalent to handwritten ones
As technology becomes more entrenched in the legal world, there’s been a shift in Ontario towards using electronic signatures (e-signatures).
While federal and provincial laws both regulate e-signatures, most contract law falls under the authority of provincial legislation. So, unless the agreement is regulated federally, provincial laws apply.
In Ontario, for example, the Electronic Commerce Act, 2000 (ECA) governs the enforceability of e-signatures at the provincial level, while at the federal level, it's the Personal Information Protection and Electronic Documents Act (PIPEDA).
The use of e-signatures as described by PIPEDA came into effect in 2004. According to the Act, e-signatures are legally equivalent to handwritten signatures. That means entities operating in Canada are free to use either as the law recognizes them as equal.
It’s important to note that PIPEDA has defined the requirements necessary for an e-signature to be valid and secure. The Act requires an e-signature to be:
- unique and distinctive to the signer
- created under the signer’s sole control
- able to confirm the identity of the signer, and
- protected by technology that can detect any further changes in the electronic document
That means that you can’t just draw an “X” or another kind of icon to sign your document. Marks like these can’t be identified as unique and don’t prove your identity.
The ECA governs the enforceability and validity of e-signatures in Ontario. The Act defines an electronic signature as “electronic information that a person creates or adopts in order to sign a document and that is in, attached to or associated with the document.”
In terms of the offer and acceptance requirements of a contractual agreement, s. 19(1) says, “An offer, the acceptance of an offer or any other matter that is material to the formation or operation of a contract may be expressed,
(a) by means of electronic information or an electronic document; or
(b) by an act that is intended to result in electronic communication, such as,
(i) touching or clicking on an appropriate icon or other place on a computer screen, or
The ECA does provide some exceptions where e-signatures may not be valid. These include wills and codicils, trusts created by wills or codicils, powers of attorney, and others.
In order to facilitate the requirements of both PIPEDA and the ECA, Siskinds LLP uses DocuSign to increase the efficiency, adaptability and accuracy of e-signature technology for its clients. The company helps with the electronic exchanges of contracts and signed documents by providing:
- A complete audit trail with date and time stamp
- Secure, encrypted documents that are legally binding, globally
- Uniquely created signatures that can only be used by the signer
- Signatures that are stored securely in the DocuSign cloud
- User-authentication methods equal to the transaction's security needs
With DocuSign, our law firm’s logo and the sender’s photo will be embedded in all emails and all signing preview pages. Signer authentication is also provided through DocuSign, which includes additional layers of authentication security which can be provided on a recipient-to-recipient basis.
DocuSign also provides security at the back end by removing all information from its servers. First, it saves all the final signed agreements and audit trails to the law firm’s servers and then deletes all of the documents from its own servers in order to ensure the client’s confidential information is secure.
Using such technology allows Siskinds to quickly and easily exchange signed contracts and documents with clients while protecting the security of the information and adhering to the conditions laid out in federal and provincial legislation.