1E9Ct5D

Electronic Contracts and SignaturesIn Canada, electronic contracts arerecognized under both the common law andprovincial e-commerce legislation. Inaddition to the enactment of provincial e-commerce statutes, more than 300 federalstatutes have been amended toaccommodate electronic documents,contracts and signatures and to removebarriers to e-commerce.The federal and provincial statutesgoverning electronic transactions and e-commerce are essentially uniform in theirtreatment of the enforceability of electroniccontracts. Most contracts made throughelectronic media are treated in the sameway as traditional contracts, provided theymeet the requirements set out in theapplicable statutes and regulations.However, there are a number of documentsincluding wills, powers of attorney and mostnegotiable instruments, which requireoriginal signatures and cannot be finalizedin electronic format.The validity and enforceability of electroniccontracts are governed by the same basicprinciples of Canadian contract law thatapply to traditional paper-based contracts(e.g., offer, acceptance, consideration). It isnecessary that the terms of the contract areclear and unambiguous, and that the partiesintend to be legally bound when they enterinto the contract. E-contracts that areentered into between individuals andelectronic agents (automated computerprograms) are considered valid andenforceable unless the individual makes amaterial error.Acceptance of the terms of electroniccontracts can be communicated throughelectronic signatures. Electronic signaturesare defined in the federal PersonalInformation Protection and ElectronicDocuments Act as a signature that consistsof one or more letters, characters, numbersor other symbols in digital form incorporatedin, attached to or associated with anelectronic document. Provincial e-commerce statutes define electronicsignatures similarly, and provide thatelectronic signatures are functionallyequivalent to their paper counterparts.Electronic documents and signatures areconsidered to be sent when they enter aninformation system outside of the sender’scontrol. Once the sent information iscapable of being retrieved and possessedby the addressee, it is presumed to bereceived.Legally valid e-contracts can also beexecuted through clicking or touching acomputer icon. Additional forms ofelectronic contracts that have beenrecognized by the common law include“clickwrap” agreements (agreements whereacceptance is expressed by clicking ortouching a computer icon), “shrink-wrap”agreements (where licences are placedinside the packaging of consumer softwareproducts) and “browse-wrap” agreements(where use of a website constitutesagreement to the terms and conditions of itsuse). However, the enforceability of suchagreements depends on the specific factsand circumstances and is determined by thecourts using the common law principles ofCanadian contract law.Trade and Business Conduct Regulation51