July 18, 2023
Digital Signatures – July 18, 2023
“Thumbs Up”: Saskatchewan Court Adopts
Expansive Interpretation of what Constitutes
a Digital Signature
By Cecilia Hoover, Dolden Calgary, and
Caitlin Merritt, Dolden Calgary
The Court of King’s Bench for Saskatchewan recently determined that texting a “thumbs up” emoji constituted acceptance of terms to a contract and binds the text-sender as if they had provided a traditional signature.
Background
In South West Terminal Ltd. v Achter Land & Cattle Ltd., 2023 SKKB 116, the plaintiff company sought to purchase 87 metric tonnes of flax from the defendant farming corporation by sending a text message setting out the key terms of the proposed agreement. The defendant’s agent called the plaintiff’s agent seeking to formalize the agreement and a formal contract was drawn up. The contract was sent as an image file in a text message, along with the message “please confirm flax contract”. The defendant’s agent responded by sending a text containing only a “thumbs up” emoji (👍).
The parties had a long history of confirming agreements via text message, but prior to this controversial alleged agreement, the defendant had always responded by typing out messages such as “Yup”, “Ok”, and “Sounds good”.
In this instance, the defendant failed to deliver the flax on or before the agreed upon deadline and the plaintiff was forced to make up the shortfall by purchasing flax at the much higher spot market price.
The plaintiff sued the defendant for the difference between the market price and the contractual price and applied for summary judgment. The key issue before the Court was whether the thumbs up emoji could be considered a digital signature in this context, thus making this a valid and enforceable contract.
The Court Expands what Constitutes a Digital Signature
The plaintiff argued that in these circumstances the thumbs up emoji constituted “an action in electronic form” that can be used to express acceptance as contemplated under the Electronic Information and Documents Act, 2000, SS 2000, c E-7.22 (the “EIDA”).
The Court agreed with the plaintiff, and expanded on the reasoning from Justice Scherman’s decision in Quilichini v. Wilson’s Greenhouse, 2017 SKQB. In Quilichini, Cecilia Hoover of our Calgary office was the first lawyer in Canada to successfully obtain a summary dismissal by arguing an e-waiver was enforceable. In doing so, Cecilia argued that under the EIDA, agreement to contractual terms could be expressed by touching or clicking on an appropriately designated icon on a computer screen – in that case by clicking “I agree” on a digital waiver of liability.
The Court ultimately ruled that like a signature, or clicking “I agree”, used to evidence identity and acceptance, a thumbs up emoji could have the same effect in the appropriate circumstances.
Takeaway
This case is yet another recent example of courts embracing the role of new technology as it relates to modern contracts. Courts have shown an increasing willingness to enforce contracts executed through electronic means, by clicking “I agree” or texting a thumbs up emoji.
This is of importance to insurers and their insureds who regularly use electronic waivers in their business activities as it reinforces the idea that, provided it is presented appropriately, an e-waiver is entirely enforceable.
That being said, while it is clear that the Court can interpret an emoji as a digital signature and enforce an electronic agreement (and waiver) this case does not create a new rule that every court must do so in the future. Each case must be determined on its own facts, when in doubt, it is always worth seeking a legal opinion.
For further information or if you have any questions about the above article, please contact the authors: Cecilia Hoover, Dolden Calgary, Email: [email protected], and Caitlin Merritt, Dolden Calgary, Email: [email protected].
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| Cody Mann |
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