With many Canadians now working remotely, obtaining original signatures for documents and commercial agreements has become increasingly difficult. The COVID-19 pandemic has also posed challenges for commissioning and notarizing documents, which are typically required to be done in person.
This bulletin provides an overview of the use of electronic signatures and describes the shift toward virtual commissioning and notarizing amid the ongoing crisis. It also provides a summary of the recent amendments to a number of Ontario statutes relating to valid signatures that are set out in Bill 190, COVID-19 Response and Reforms to Modernize Ontario Act, 2020.
What is an electronic signature?
An electronic signature refers to encrypted digital signatures (such as those produced using e-signature software) or digitized signatures (such as a handwritten signature that is scanned) in lieu of a "wet ink" signature which is manually signed by hand. A signature of any type indicates acceptance of an agreement or the authentication of a document.
Canadian electronic commerce statutes provide for the equivalency of manual and electronic signatures in cases where there is a legal requirement that the document be signed. Certain industry-specific legislation, including the federal Trust and Loan Companies Act, the Bank Act, the Insurance Companies Act and the applicable regulations thereto, have also explicitly recognized electronic signatures when written executed documents are required by such legislation.
Where there is no clear legislative requirement to sign a document, the rules of common law would govern the enforceability of electronic signatures. Canadian common law generally recognizes electronic signatures and provides that any proof of assent to an agreement is acceptable (so long as certain requirements are met). Canadian evidence statutes also generally permit reliance on electronic documents in legal proceedings, provided standard requirements regarding authenticity and integrity of the document are met.
Commercial agreements
In general, agreements between two or more sophisticated business entities can be signed using an electronic signature. The use of electronic signatures for various types of commercial agreements is fairly common and increasing in frequency. If you are considering the use of an e-signature in this context, you should ensure the following requirements are met:
- The e-signature is shown to be reliable (i.e., the signature can identify the signer) and the process for applying the signature to the document is shown to be reliable; there is reliable evidence that the e-signature was affixed to the agreement at the relevant time
It is generally easiest and most reliable to use a third-party software that can capture information such as the IP address or device identifier used by the person signing the document, the date and time of the signing, and which is built with security features requiring secure log-in and preventing modifications to the document once signed. However, a digital signature without the use of software (such as where a person manually signs or affixes their electronic signature to an electronic document) may be permissible in low-risk situations, such as where it is provided by e-mail from a known recipient.
- There is consent between the parties to use electronic signatures
Consent may be express (such as where an agreement includes a provision stating that both parties consent to the use of electronic signatures) or implied, where there are reasonable grounds to believe that the consent is genuine and is relevant to the information or document (such as where the parties enter into the agreement online or by way ofe-mail). For the avoidance of doubt, parties should consider including a provision in the agreement whereby the parties agree to the use of electronic signatures to execute documents.
It should be noted, however, that the following documents are explicitly excluded from the scope of electronic commerce legislation:
- wills and codicils;
- trusts created by wills or codicils;
- powers of attorney with respect to individual financial affairs or personal care; and
- negotiable instruments.
This does not mean that these documents are necessarily precluded from being signed by electronic means, but rather, common law rules dealing with execution requirements, and in some cases other legislation relating to these documents, apply to govern the validity of their execution.
Real estate
Following amendments to Ontario's Electronic Commerce Act in 2015, real estate documents that create or transfer interests in land, such as transfers of land, agreements of purchase and sale, commercial leases, the vast majority of instruments which may be registered in Ontario's land registry offices, and documentation authorizing the registration of such instruments, may be executed by electronic signature. However, certain paper documents still require original signatures at Ontario's land registry offices, including all non-converted Registry Act Polaris documents, reference plans, and prescribed forms of consents for declarations required under the Condominium Act. Certain documents that must by law be executed or signed in a certain fashion, such as sworn declarations or affidavits, may require "wet ink" signatures.
Lending and secured transactions
Generally, security agreements and guarantees can be signed electronically, with the following exceptions:
- negotiable instruments, such as promissory notes, letters of credit or pledge bonds; and
- notices of intention, notices of renewal and notices of release under the Bank Act (Canada).
Security interests
Depending on the nature of the security interest, certain security interests, such as in inventory or equipment, can be perfected by filing a registration statement with the applicable provincial personal property registry, and such registration does not require the secured party to present the underlying agreement. Therefore, the ability to register a security interest would not be impacted by whether an underlying security agreement for equipment or inventory was signed electronically.
Additionally, in order to acknowledge the increased commercial use of digital documents and e-signatures, and to align the secured financing practices set out in Ontario's Personal Property Security Act (PPSA) with the requirements presented by the increased use of electronic documents on commercial transactions generally, amendments to Ontario's PPSA that were proclaimed into force on May 15, 2020 allow a security interest in electronic chattel paper to be perfected by control, so long as certain enumerated requirements are met. Control of electronic chattel paper is intended to be equivalent to perfection by possession of the chattel paper that was executed with a "wet ink" signature. However, subject to certain exceptions, the interest of a purchaser of tangible chattel paper will have priority over the purchaser of the same chattel paper in electronic form.
Share certificates / unit certificates and accompanying transfer powers
While an original share or unit certificate must be physically delivered and pledged to lenders to ensure perfection by control, such certificate may be signed electronically according to the Canada Business Corporations Act and the Business Corporations Act (Ontario). Conflicting provisions within Ontario's Electronic Commerce Act, however, do not clarify if an electronic endorsement signature is sufficient to satisfy requirements for control, and, in practice, original signatures are required for transfer powers.
As such, in practice, given the importance of maintaining control over the certificate, lenders are generally reluctant to allow for share or unit certificates to be signed electronically (and where such a signature is not possible, consideration should be given to pledging uncertificated shares or units instead). In light of COVID-19, where certificated shares are required to be pledged, parties to a transaction should consider seeking consent from lenders to provide electronically-signed documents, with physical copies to follow at a later date.
Securities
For many securities offerings, there are two types of documents that require original "wet ink" signatures: (i) Form 6 certificates of authentication required for certain filings on the System for Electronic Document Analysis and Retrieval (SEDAR), (ii) global securities that are deposited with CDS Clearing and Depository Services Inc. (CDS), and (iii) Firm Enrolment Forms on the National Registration Database (NRD). SEDAR, CDS and the NRD have made accommodations for issuers and underwriters while everyone works from home.
Canadian securities regulatory authorities generally allow for electronic delivery of documents that are required to be filed or delivered with them. Typically, these documents allow for a conformed signature on an electronic document. The same is true for other filings requiring a signature under applicable securities laws, including filings on SEDAR, insider filings on the SEDI system, and most filings on the NRD.
Transfer agents and trustees involved in the issuance or certification of securities are accepting scanned documentation from issuers, and will similarly provide an electronic or scanned signature where required on any security certificates. Issuers should check indentures or other documents governing the issuance of securities to ensure that manual signatures are not prescribed, and make any technical amendments where necessary.
SEDAR Form 6s
Generally, SEDAR Form 6s, which certify that a signatory authorizes the electronic entry of their name in an electronically filed document, must be signed in original form with a "wet ink" signature and delivered to the CSA Service Desk. SEDAR has recently advised all issuers to not courier Form 6s in original form, as is done in the usual course of business. Instead, SEDAR has asked that issuers send scanned manual signatures or electronically signed documents (but not typed signatures (i.e., fonts)) via email to csacrm@cgi.com, with hard copy manually signed versions of such Form 6s to follow once regular operations resume.
Global securities
Although CDS normally requires that global securities are deposited in person at CDS in original form and contain a "wet ink" signature, CDS has issued a statement that due to COVID-19, it will accept a PDF copy of the executed global security, including those executed with electronic signatures, provided that that the originally signed global security will be delivered to CDS as soon as normal operations resume for both CDS and the respective issuers.
NRD firm enrolment forms
Firm Enrolment Forms must also be signed in original form with a "wet ink" signature and delivered to the CSA Service Desk at the Alberta Securities Commission. The NRD has recently published a COVID-specific notice stating that they will currently accept Firm Enrolment Forms by email at csaops@cgi.com instead, but will follow up to request hard copies once operations return to normal (taking a similar approach to SEDAR).
Virtual commissioning and notarizing
In light of COVID-19, the Law Society of Ontario (LSO) recently issued a corporate statement regarding electronic commissioning and notarizing of documents. Specifically, the Commissioners for Taking Affidavits Act requires that "every oath and declaration shall be taken by the deponent in the presence of the commissioner or notary public". Additionally, the Notaries Act requires that, in verifying the genuineness of a signature, such document is "brought before [the lawyer or paralegal] for public protestation". The LSO will, as a result of COVID-19, for the time being, interpret the in-person requirements for commissioning and notarizing as being met via video conferencing. However, in order to verify a true and genuine copy of an original document, a notary must examine original documents against the copies.
Practically, virtually notarizing or commissioning an affidavit means watching the client sign a document via video conference. The commissioner or notary should be able to clearly see the document before administering an oath. Video conferencing can also be used to verify the deponent's identity, if necessary, and, if possible, the commissioner or notary should take a digital image of the government-issued photo identification used for this purpose. The commissioner or notary should also ensure to revise the location of the jurat to reflect the fact that the commissioning or notarizing was done by video conference.
Certain courts, such as The Ontario Superior Court (Commercial List) and the Superior Court of Justice (Civil and Family) have explicitly recognized the LSO's guidance with regard to accepting affidavits sworn virtually.
Commissioners and notaries should be aware of the risks of virtual commissioning, which risks may include fraud, identity theft, and undue influence. Commissioners should ensure they provide an affiant with adequate opportunities to ask questions and should send the affiant a final executed copy of the commissioned document.
Certain laws governing specific types of documents may override these general rules and require a specific form of signature. If you are unsure whether a specific document can be executed by means of an electronic signature, please discuss with your counsel.
Bill 190 and the expanded scope of electronic signatures in Ontario
Bill 190, or the COVID-19 Response and Reforms to Modernize Ontario Act, 2020, was passed by the Ontario legislature on May 12 in order to ameliorate the threats to public health presented by the COVID-19 pandemic while facilitating certain forms of corporate activity. Bill 190 amends existing Ontario legislation and also brings into force the newly-enacted Alternative Filing Methods for Business Act, 2020. It is worth noting that these amendments are permanent, and not temporary emergency measures.
Electronic signatures in respect of filing materials
The Alternative Filing Methods for Business Act, 2020, which applies to the Business Corporations Act, the Business Names Act, the Corporations Act, the Co-operative Corporations Act, the Extra-Provincial Corporations Act, the Limited Partnership Act, and any other prescribed act, permits documents required or permitted to be filed by in-person delivery or mail under certain business statutes to instead be filed by alternative methods, and permits electronic signatures and electronic copies in respect of certain documents, in order to address public health and safety concerns.
Beneficiary designations
Bill 190 also amends the Ontario Law Reform Succession Act to allow beneficiary designations to be made through electronic signatures. Specifically, Bill 190 adds a new provision enabling the signature requirement for certain designations of a person to receive a benefit payable under a plan on the participant's death to be discharged electronically.
Originally published June 08, 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
