Electronic Signature Laws & Regulations - Canada

Overview

Electronic signatures are commonly used in Canada as its use eases the contractual process in a digital environment. The use of electronic signatures in Canada has increased in recent years and it is expected that this trend will continue. Courts and judges across Canada have generally been supportive of the use of electronic signatures. The Government of Canada has also acknowledged the increased use of electronic signatures in Canada and provided its own internal guidance on the subject under the Government of Canada Guidance on Using Electronic Signatures.

The main laws and regulations governing the use of electronic signatures and secure electronic ‎signatures in Canada include:

  • The Personal Information Protection and Electronic Documents Act (“PIPEDA”) which was enacted by the federal government and provides that an electronic signature can be used to fulfill any signature requirement that is listed in specified provisions of federal laws;
  • Secure Electronic Signature Regulations which provide the requirements for secure electronic signatures;
  • The Uniform Electronic ‎Commerce Act of Canada (“UECA”) which is a piece of model legislation that each province ‎and territory (except for Quebec) uses as a model for its e-signature legislation; and
  • Other Provincial Legislations: each province has its own unique laws and regulations that govern the use of electronic signatures and secure electronic ‎signatures.

Provincial and federal legislation governs the use of electronic and digital signatures in Canada. However, it is important to note that where a given ‎statute or regulation is silent on the method of execution, electronic signatures are generally acceptable and enforceable in court. If certain legislation specifies requirements for ‎document execution (e.g., paper, original, in ‎‎writing, non-electronic, signature is required, ‎etc.), the document can only be ‎‎executed electronically if permissible under applicable provincial or federal legislation.

Provided an electronic signature is permissible ‎under, and in compliance with, applicable laws, ‎it cannot be denied effect solely because it is in ‎electronic form. However, if the authenticity is ‎challenged, the party seeking to enforce the ‎electronic signature may need to provide ‎further evidence establishing the signature’s ‎validity. ‎As a result, the type of electronic signature used will impact the enforceability of the signature. The greater the security and traceability associated with the electronic signature, the easier it will be to establish the signature’s ‎validity.

Types of Electronic Signatures in Canada

An electronic signature can generally be any form of electronic representation that can be linked or attached to a document, such as a typed signature or a scanned hand-written signature. Regardless of the type of electronic signature, an electronic signature must still fulfil the fundamental role of a signature and should:

  • ensure the individual signing the document can be associated ‎with the electronic signature;
  • convey the intent of the individual in signing the document; and
  • demonstrate an agreement to be bound by the contents of the document.

In Canada, “electronic signatures” are distinguished from “secure electronic signatures”. Secure electronic ‎signatures are a more secure type of electronic signature and are generally only required in specific circumstances as outlined in various provincial and federal legislation. Accordingly, their use is less prevalent than the use of standard electronic signatures. Nonetheless, secure electronic signatures may be recommended even when not explicitly required due to their added security and enforceability.

A secure electronic signature is a type of digital signature based on asymmetric cryptography that relies on public key infrastructure (PKI) to manage the associated ‎private signing keys and public verification certificates. The requirements for secure electronic signatures are outlined in the Secure Electronic Signature Regulations, which are annexed to both PIPEDA and the Canada Evidence Act. A secure electronic signature must have an associated digital signature certificate that comes from a verified certification authority. Secure electronic signatures have higher evidentiary value than electronic signatures and are generally presumed to be equivalent to a wet signature. When secure electronic signatures are used, the data is presumed, in the absence of evidence to the contrary, to ‎have been signed by the person who is identified in, or can be identified through, the digital signature certificate.

Per the Secure Electronic Signature Regulations, secure electronic signatures must include a digital signature certificate that:

  • identifies the certification authority that issued it and is digitally signed by that certification authority;
  • identifies, or can be used to identify, the person; and
  • contains the person's public key.

A certification authority is a person or entity that issues digital signature certificates. All verified certification authorities are listed on the website of the Treasury Board Secretariat at: https://www.canada.ca/en/government/system/digital-government/online-security-privacy/security-identity-management/secure-electronic-signature-regulations-recognition-process.html. Anytime the use of a secure electronic signature is required under PIPEDA or any other legislation, it is important to ensure that the digital signature certificate associated with the secure electronic signature comes from a verified certification authority.

Federal Legislation

The federal government enacted PIPEDA, which, among other things, states that an electronic signature can be used to fulfil any signature requirement listed in one of its specified provisions of federal laws. PIPEDA does not apply to all federal laws, but rather, only applies to the specific federal statute provisions outlined in Schedule 2 and 3 of PIPEDA. As a result, PIPEDA leaves more gaps in the permissibility of electronic signatures under federal laws than is seen at the provincial level. To fill these gaps, many other federal statutes and regulations have independently incorporated language permitting electronic documents and signatures.

Under PIPEDA, the following use cases require the use of a secure electronic signature:‎

  • documents used as evidence or proof;
  • seals;
  • original documents;
  • statements made under oath‎;
  • statements declaring truth; and
  • witnessed signatures.

In addition to the above instances, other provincial and federal legislations may call for the use of secure electronic signatures in specific circumstances. The documents most commonly required to be signed electronically using a secure electronic signature in other federal or provincial legislations are statutory declarations and affidavits.

Provincial Legislation

Legislation governing electronic transactions and commerce have been enacted in all ‎the provinces and territories of Canada. The legislation of each province ‎and territory (except for Quebec) are largely modelled on the UECA, which is a piece of model legislation rather ‎than a binding piece of legislation. ‎For example, Ontario has enacted the Electronic Commerce Act, 2000 (the “Ontario Act”), British Columbia has enacted the Electronic Transactions Act (the “BC Act”)‎, and Alberta has enacted the Electronic Transactions Act (the “Alberta Act”).

The general rule under the UECA ‎is that a document or a record to which these legislations apply must not be denied legal effect or ‎enforceability solely because the signature is in electronic form. Provincial legislations may exclude specific ‎documents and types of transactions from the scope of documents that can be ‎signed electronically. Provincial legislation may also require heightened standards to be met for electronic signatures to be used for certain classes of prescribed documents.

Quebec has adopted its own legislation governing electronic transactions and ‎commerce, namely the Act to establish a legal framework for information technology (the “Quebec Act”). The Quebec Act allows for the use of an electronic signature in instances where “the integrity of the document is ensured and the link between the signature and the document was established at the time of signing and has since been maintained.” There are no specific means or processes prescribed under the Quebec Act for establishing when these conditions are met, but it appears that most forms of electronic signatures would suffice. Certain requirements related to electronic ‎transactions and commerce are also governed by the Civil Code of Quebec (“CCQ”) ‎and the Consumer Protection Act (“CPA”). Where a document requires a notarial signature, however, remote signing will only be permitted in exceptional circumstances and based on the notary’s judgement.

Special Considerations

Transacting with public sector entities

Some Canadian provinces have specific requirements for using electronic signatures with government entities.

Under the Alberta Act and the Ontario Act, the legal requirement for a signature provided to a public body is ‎satisfied by an electronic signature only if:

  1. the electronic signature meets the ‎public body’s information technology standards that have been established, if any; ‎and
  2. the electronic signature meets the requirements, if any, of the public body ‎as to the method of making the signature and as to reliability of the signature.‎

Further, under the Alberta Act and ‎the Ontario Act, the consent of a public body needs to be given by explicit communication to use an electronic signature.

Use cases that generally require a traditional signature

Federal
Unlike the provincial Acts, PIPEDA does not have a list of use cases that require a traditional signature since its electronic signature rules apply only to the small number of provisions of federal laws listed in Schedule 2 or 3 of PIPEDA. Therefore, any signature requirement under a federal law not listed in Schedule 2 or 3 of PIPEDA must be met with a handwritten signature, unless there is a provision in other legislation that permits an electronic signature or the legislation is silent on the method of execution.

For example, Canada’s Copyright Act states that any copyright assignment must be in writing and signed by the copyright owner. Since PIPEDA’s Schedules do not mention the Copyright Act, that signature requirement is NOT satisfied by an electronic signature, and a handwritten signature is required for the copyright assignment to be effective. This demonstrates the narrow scope of PIPEDA’s application and the gaps left in the federal electronic document regime.

Provincial
Certain provincial legislation excludes specific ‎documents and types of transactions from the scope of documents that can be ‎signed electronically. The specific exclusions are as follows:

Ontario Act
The Ontario Act does not allow electronic signatures to be used for:

  • Wills and codicils;
  • Trusts created by wills or codicils;
  • Powers of attorney, to the extent that they are in respect of an individual’s financial affairs or personal care;
  • Negotiable instruments;
  • Documents that are prescribed or belong to a prescribed class (no regulations exist yet); and
  • Documents of title, unless they apply to contracts for the carriage of goods.

BC Act
The BC Act does not allow electronic signatures to be used for:

  • Wills;
  • Trusts created by wills;
  • Powers of attorney, to the extent that they concern the financial affairs or personal care of an individual;
  • Documents that create or transfer interests in land, and that require registration to be effective against third parties;
  • Other provisions, requirements, information, or records prescribed in the regulations (no regulations exist yet); and
  • Negotiable instruments or instruments of title, unless they may relate to the carriage of goods.

However, British Columbia became the first province to allow electronic wills, which can be signed and stored digitally and have the same recognition as a physical will. All parties, including the will-maker and witnesses, can sign the electronic will by “electronic signature”-- a signature or identifier, in electronic form, that a person has created or adopted in order to sign a record and that is attached to or associated with the record. Rules regarding electronic wills can be found in BC’s Wills, Estates and Succession Act and Supreme Court Civil Rules. Similarly, Saskatchewan passed legislation in May 2023 authorizing the use of electronic wills.

Alberta Act
The Alberta Act does not allow electronic signatures to be used for:

  • Wills and codicils;
  • Trusts created by wills or codicils;
  • Enduring powers of attorney under the Powers of Attorney Act;
  • Personal directives under the Personal Directives Act;
  • Records that create or transfer interests in land, including interests in mines and minerals;
  • Guarantees under the Guarantees Acknowledgement Act;
  • Negotiable instruments;
  • Records that are otherwise prescribed, or belong to a class that is otherwise prescribed, as records or a class of records to which the Act does not apply; and
  • Documents of title, except for contracts related to the carriage of goods.

Quebec
The CPA, the CCQ, any other provincial laws in Quebec may require that a specific medium (e.g. a paper-based document) or other formalities (e.g. a notarial deed executed with and in the presence of a Quebec notary) be used as a condition of validity. The CPA holds, for instance, that the following documents must be drawn up in paper form if the merchant and the consumer are in one another’s presence, and if the transaction is preceded by an offer by the merchant to enter into such a contract:

  • Contracts entered into by itinerant merchants;
  • Contracts of credit;
  • Contracts which include a conventional option to purchase the goods leased;
  • Contract of sale and long-term contracts of lease of used automobiles or motorcycles;
  • Contracts relating to timeshare accommodation rights;
  • Service contracts involving sequential performance for instruction, training or assistance;
  • Service contracts with a physical fitness studio;
  • Contracts involving sequential performance for a service provided at a distance; and
  • Debt settlement service contracts.

The CCQ provides that the following contracts (and possibly others) must be notarized in accordance with specific notarization procedures:

  • Marriage contracts;
  • Wills;
  • Declarations of co-ownership;
  • Protection mandates and powers of attorney;
  • A loan instrument or acquittance in the context of subrogation; and
  • A hypothec in favour of a hypothecary representative, except in the case of a movable hypothec with delivery.

Many documents that require a notarial signature will be permitted to be signed remotely in exceptional circumstances and based on the notary’s judgment.

Note that in addition to the above, government bodies in Quebec are generally free to establish their own rules regarding the transmission of documents, including whether they can be electronically signed or not.

Other Provinces & Territories
Manitoba’s Electronic Commerce and Information Act only explicitly states that negotiable instruments, including negotiable documents of title, cannot be signed electronically.

All remaining provincial and territorial UECA legislations do not allow electronic signatures for the following:

  • Wills;
  • Trusts created by wills; and
  • Powers of attorney, to the extent that they concern the financial affairs.

Note that the list above outlines the exclusions common to all the remaining provincial and territorial legislations. Some of the remaining provincial and territorial legislations include further exclusions.

Commissioning and notarial acts: Canada has typically required in-person commissioning and did not allow for use of electronic processes. However, many jurisdictions continue permitting commissioning virtually using video conferencing and electronic signatures. These virtual measures are temporary, and subject to specific rules and limitations. On the other hand, virtual notarizations are not permitted across Canada. For example, the Ontario Notaries Act stipulates that remote notarizations are permitted if a regulation made under the Act permits such a practice and the conditions set out in the regulations are met. To date, no regulations permitting remote notarization have been made. Further, authentication of documents and certification of copies of documents are generally not permitted to be notarized electronically.

Note:

Disclaimer: Information on this page is intended to help businesses understand the legal framework of electronic signatures. However, Adobe cannot provide legal advice. You should consult an attorney regarding your specific legal questions. Laws and regulations change frequently, and this information may not be current or accurate. To the maximum extent permitted by law, Adobe provides this material on an "as-is" basis. Adobe disclaims and makes no representation or warranty of any kind with respect to this material, express, implied or statutory, including representations, guarantees or warranties of merchantability, fitness for a particular purpose, or accuracy.

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