Legal framework
for electronic signatures

The applicable Canadian statutes are based on the principle of technological neutrality, and provide that in most cases, reference to a written instrument does not presuppose the use of any specific medium, thus leaving it up to the parties to choose whether to use paper-based or electronic documents. Consequently, the legal effect of a document will not be negated by the fact that it is in electronic form or was signed electronically.

With rare exceptions¹, electronic signatures are thus recognized as a valid means of expressing consent and concluding agreements, to the extent that the integrity of the signed document can be established. In Canada there can therefore no longer be any doubt that a document in electronic form, signed via an e-signature solution, is legally valid.

The admissibility into evidence and enforceability of an electronic document depends on the ability to demonstrate the origin and integrity of the document. The degree of certainty provided by the functionalities of the electronic-signature process is thus determinative, and organizations must carefully consider these when choosing a solution.

The concept of the integrity of a document involves the ability to confirm the absence of any modifications to it or to detect any modifications made to the document since it was finalized or signed.

From a legal standpoint, a signature is a permanent feature of a document associated with a specific person and indicative of his or her intention (e.g. consent). An electronic signature is obviously a signature applied to an electronic document.² In the context of concluding an agreement, the signature performs a dual role: confirmation of the identity of the parties, and of their respective intention to give full effect to the signed document.

Under the Canadian statutes, a document bearing an electronic signature that allows the origin and integrity of the document to be established on the sole basis of the document itself constitutes evidence that is admissible in court. It is thus critical to ensure that the e-signature solution used allows the integrity of the document to be preserved and proof of this to be established.

E-signature solutions such as ConsignO Cloud allow the origin and integrity of a document to be established and for it to be enforced against the parties , by demonstrating its nexus with the parties and that no modifications were made to it since it was executed.

In order to establish that documents signed with a given e-signature solution are admissible into evidence and enforceable, organizations will need to rely on the representations and explanations of their solution suppliers concerning the functionalities and creation parameters of user accounts, of user authentication, access, activity and session logs, documentation of the steps inherent in the solution, and the conditions for the preservation of the documents in question.