Electronic & Digital Signatures in Canada

Legislation

E-signatures in Canada carry the same legal weight as handwritten signatures and are regulated on a federal level by the Personal Information Protection and Electronic Documents Act (PIPEDA). The country is well known for having a tech-friendly approach to document signing and, comprising ten provinces, e-signatures are governed by both federal and provincial law, with contracts being governed by the latter. 

In a bid for uniformity relating to electronic business, all the provinces in Canada, bar Quebec, have set in place legislation that is based on the Uniform Electronic Commerce Act, or UECA. Even so, Quebec has its own similar legislation (CQLR c C-1.1), which also establishes that electronic signing and documentation carry the same legal sway as their ink and paper counterparts. 

In Canada, Part 2 of PIPEDA sets a standard that provides for electronic equivalents to paper documents and signing at the federal level. It defines an e-signature as comprising one or more letters, characters, numbers, or symbols that are in a digital format that are incorporated, attached to, or associated with a digital document. 

Electronic Signing of Documents in General

In Canada, an e-signature is considered to be just about any type of electronic representation that is able to be attached or linked to an electronic transaction or document. Examples of this could include: 

• authentication of a user to an internal application for approval 

• authentication of a user accessing a website, combined with clicking on some form of acknowledgement to signal or confirm intent 

• the use of a stylus on a tablet touch screen for capturing a handwritten signature in electronic format 

• a handwritten signature that is scanned and placed on an electronic document

• a typed name or signature block in an email

• a sound byte, like a voice command recording

In some situations, Part 2 of PIPEDA requires the usage of a certain type of e-signature, referred to as a “secure electronic signature,” which is based on asymmetric cryptography. The following situations, according to this legislation, necessitate the use of such a secure electronic signature: 

• documents that are used as proof or evidence

• seals 

• original documents 

• statements that are made under oath

• statements that declare truth 

• signatures that are witnessed 

Even though this legislation provides for general applications, several of the electronic equivalents are based on a framework that requires opting in. As such, when it comes to departments and agencies, these provisions do not apply, unless these departments or agencies select to opt in and list the federal law or provision that includes the given signature. 

Instead of opting in to the PIPEDA regulation, many agencies and departments have changed their statutes to offer up more general clarity when it comes to e-signatures and electronic documents.  

Digital Signatures

Section 4 of the PIPEDA uses the words “digital signature” to define an electronic signature that is secure. So, technically, an e-signature and a digital signature are considered to be the same, because they are both a type of e-signature based on an asymmetric cryptographic process, and both rely on public key infrastructure, or PKI, to manage private signing keys and certificates for public verification.

Secure Electronic Signatures

The regulations that govern secure electronic signatures prescribe a particular asymmetric algorithm in order to support digital signatures. They specify that the issuing Certification Authority, or CA, has to be recognized by the Treasury Board of Canada Secretariat by way of verifying that they indeed have the capacity to issue digital signature certificates in a way that is both reliable and secure. 

It is also presumed under this regulation that the electronic data has, in fact (and in the absence of any evidence to prove otherwise), been signed by the individual identified in the digital signature certificate or who is able to be identified by way of this certificate. 

When Should an Electronic Signature Be Used?

There are situations where regulations or policy specify that an e-signature is needed, or what type of e-signature is needed for a document. In some situations, the legal requirement for an electronic signature is merely implied, or the requirement for one has been established for another reason that is not to do with legislation. Either way, the type of e-signature required may not always be clear. 

Provincial Considerations Regarding Electronic & Digital Signatures in Canada

Alberta Act

Defines an electronic signature as ‘electronic information that a person creates or adopts in order to sign a record and that is in, attached to or associated with the record.’

Ontario 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.’

BC (British Columbia) Act

Defines an electronic signature as ‘information in electronic form that a person has created or adopted in order to sign a record and that is in, attached to or associated with the record.’

Quebec Act

Even though this act doesn’t define an electronic signature per se, it does provide that ‘the link between a person and a document, whatever the medium used may be established by a person’s signature’ and a “signature” is defined in the CCQ (Civil Code of Quebec) as ‘the affixing by a person, to a writing, of his name or a mark distinctive to him which he regularly uses to signify his consent.’

Documents that may be signed electronically in Canada 

The following types of transactions in Alberta, British Columbia, Ontario, and Quebec are generally able to be completed using electronic signatures: 

• human resource documents, like employment contracts, NDAs, employee invention agreements, privacy notices, documentation around benefits, and employee onboarding processes

• commercial agreements that take place between corporate entities

• corporate documentation

• consumer agreements 

• certificates, licenses, notices, disclosure, and reports, for example, from government bodies, unless they are otherwise specifically exempt from their respective legislation 

• certain types of intellectual property transfers and licenses

Documents that should only be signed with a wet signature in Canada 

Documents that are specifically excluded from being able to be signed using an electronic signature are as follows: 

• wills and codicils

• trusts that are created by wills or codicils

• powers of attorney relating to finances or personal care

• negotiable instruments, like promissory notes

• notarizations

• divorce and adoption family law documents

• some legally required disclosures to consumers

• official court documents

• some real estate agreements

Helpful Resources

• Government of Canada: Government of Canada Guidance on Using Electronic Signatures

This page is intended to communicate general information and does not constitute legal advice. While we have made every effort to ensure that this information is both accurate and up to date, it may not necessarily represent the most recent version of the legal topics in question. No action should be taken based on the information provided herewith and Smallpdf and its employees disclaim all liability relating to any actions that are or are not taken in reliance upon this information to the fullest extent permitted by law. In the case of any questions or uncertainty regarding the legality of electronic and/or digital signatures in your country or area, please consult your local laws or a legal professional for advice.