Provincial and federal laws govern the use of electronic and digital signatures in Canada. However, it is important to note that if a particular law or regulation does not specify how it will be enforced, electronic signatures are generally acceptable and enforceable in court. If certain laws impose requirements on the execution of documents (e.g., paper, original, written, non-electronic, signature, etc.), the document may only be signed electronically if permitted by applicable federal or state law. Detailed information on the use of electronic signatures and e-filing is available in the ministry`s communication here. Under PIPEDA, an electronic signature satisfies a requirement under a provision of a federal statute for a signature if: Some Canadian provinces have specific requirements for the use of electronic signatures with government agencies. PIPEDA: An electronic signature is a “signature consisting of one or more letters, characters, numbers or other symbols in digital form that are incorporated, attached or associated with an electronic document.” PIPEDA also recognizes and requires the use of a “secure electronic signature” in certain circumstances. A secure electronic signature is an electronic signature resulting from the application of a technology or process required by regulation, when the regulation provides for a specific series of successive operations that must be completed for the signature to be qualified. A secure electronic signature is a digital signature based on asymmetric cryptography and based on a public key infrastructure (PKI) to manage associated private signing keys and public verification certificates. The requirements for secure electronic signatures are outlined in the Secure Electronic Signatures Regulations, which are appended to PIPEDA and the Canada Evidence Act.
A secure electronic signature must be associated with a digital signature certificate from a verified certificate authority. Secure electronic signatures have a higher evidentiary value than electronic signatures and are generally considered equivalent to a handwritten signature. When using secure electronic signatures, in the absence of evidence to the contrary, the data is presumed to have been signed by the person identified or identifiable by the digital signature certificate. In Ontario and Alberta, an electronic signature satisfies the legal requirement to provide a signature to a public body if: As we mentioned in our April 2020 Blakes Bulletin: Ontario Expands and Refines Business Meeting Order, temporary amendments have already been made to the OBCA, the CCA, IBC and the Condominium Act. 1998 (Condominium Act) respecting virtual meetings and the postponement of annual meetings in certain circumstances by order made under the Emergency Management and Civil Protection Act (Ontario). These temporary measures from the OBCA, CCA, LAC and Condominium Act have now generally been adopted as part of legislative amendments to the COVID-19 Response and Modernization Ontario Reforms Act, 2020, which repeals and replaces previous emergency orders. For more information, please contact a member of our Corporate, Commercial or Capital Markets group at any time or your usual contact at Blakes. Please visit our COVID-19 Resource Centre to learn more about how COVID-19 can impact your business. In Canada, “electronic signatures” are distinct from “secure electronic signatures”.
Secure electronic signatures are a more secure type of electronic signature and are generally only necessary in certain circumstances, as described in various state and federal laws. As a result, their use is less common than the use of standard electronic signatures. Nevertheless, secure electronic signatures may be recommended, even if they are not specifically required due to their increased security and applicability. The general rule of the UECA is that a document or record to which this legislation applies cannot be denied legal effect or enforceability solely because the signature is in electronic form. Provincial legislation may exclude certain documents and types of transactions from the scope of electronically signed documents. Provincial legislation may also require high standards for the use of electronic signatures for certain categories of required documents. To enact these provisions, the ministry consulted with the Business Law and Administrative Burden Modernization Council, led by E. Patrick Shea, LSM, a partner at Gowling WLG. The Council continues to advise the ministry during the COVID-19 pandemic to support its mandate to update Ontario`s trade laws. In the context of PIPEDA, the following use cases require the use of a secure electronic signature: The ECA broadly defines an electronic signature as “the electronic information that a person creates or accepts in order to sign a document and that is contained in, attached to, or linked to the document.” .