Commercial Litigation and Dispute Resolution Blog

What do a “thumbs up” emoji and an email signature have in common? Both might have you wishing you never pressed send.

Last month, in a decision that has made international news, the Saskatchewan Court of King’s Bench gave a thumbs up to entering into contracts with a “thumbs up” emoji. In South West Terminal Ltd. v Achter Land, 2023 SKKB 116, the court held that sending a thumbs-up emoji or "👍" met the requirements for an electronic signature and was sufficient to form a valid contract. In that case, the plaintiff texted a photo of the proposed contract to purchase a flax order from the defendant and asked the defendant to confirm that there was a deal. The defendant texted back a "👍" but ultimately failed to deliver the flax.

The court first assessed the parties’ prior business relationship to establish that the defendant’s use of "👍" was consistent with how the parties historically communicated when entering into purchase order contracts.

Next, the court considered whether the “thumbs up” emoji was sufficient to express acceptance of a binding contract. The Court noted that as between the parties, and also in general everyday use, the "👍" emoji is used to express assent or approval. Therefore, the emoji was determined to be "an action in electronic form that can be used to express acceptance" for the purposes of the Electronic Information and Documents Act, 2000 (“EIDA”).^[1]

The court also concluded that "👍" amounted to an “electronic signature” under the EIDA. The emoji originated from the defendant’s unique cell phone number and the authenticity of the text message was not in dispute. Therefore, the "👍" emoji was a valid way to communicate the two purposes of a signature: to identify the signatory and to convey acceptance.

The court noted that the emoji was a “non-traditional means to sign a document,” but acknowledged that it “cannot (nor should it) attempt to stem the tide of technology and common usage – this appears to be the new reality in Canadian society and courts will have to be ready to meet the new challenges that arise from emoji’s and the like.”^[2]

The Saskatchewan Court’s decision serves as a cautionary tale to contracting parties in British Columbia, particularly in light of the British Columbia Supreme Court’s decision in Johal v Nardio,^[3] commenting that the definition of “electronic signature” in the EIDA is “very close” to the definition in the British Columbia legislation, the Electronic Transactions Act^[4] (“ETA”). The similarities between the EIDA and the ETA indicate that a British Columbia court is likely to give weight to the Saskatchewan court’s reasoning if faced with a similar issue.

Email Signatures in British Columbia

In Johal, the British Columbia Supreme Court found that an email signature constituted an electronic signature for the purposes of the ETA. A debtor did not repay a loan from the plaintiffs by the repayment deadline. For several months after the repayment deadline, the debtor sent a number of emails promising repayment once he closed the sale of a property. These emails were signed electronically, indicating the debtor’s name, position, and contact information (i.e. email signature). However, the plaintiff commenced the claim more than two years after the repayment deadline. Therefore, the issue before the court was whether the debtor’s email constituted an acknowledgment of the debt, such that the limitation period was extended.

Importantly, the Limitation Act^[5] provides that an acknowledgment needs to be in writing and signed by hand or electronic signature. Under the ETA, an “electronic signature” is defined as “information in electronic form that a person has created or adopted in order to sign a record and that is attached to the record.”^[6]

The debtor argued that his email signature was insufficient to meet the requirements of an electronic signature under the ETA, and that something more akin to a digital signature was required. The court disagreed. The court in Johal found the information at the bottom of the emails constituted: (1) information in electronic form, (2) created by the debtor to sign the emails, and (3) was attached to the emails. Consequently, the court found the debtor’s email signature was an “electronic signature” under the ETA. It is likely that including your name in a text or email would suffice as well, in the absence of a formal email signature.

Takeaways:

• Given the similarities between Saskatchewan and British Columbia legislation with regard to electronic signatures, there is a strong likelihood that a British Columbia court would agree that a “thumbs up” emoji meets the requirements for an electronic signature and thus creates a contract.
• Simply sending a “thumbs up” emoji does not by itself mean a party has entered into a contract. In each instance, the court will still apply the principles of contractual interpretation and consider the history of the parties’ relationship to determine whether a valid contract exists.
• An automatic email signature can be an electronic signature under British Columbia legislation.
• Canadian courts are increasingly open to changes in technology and considering contracts in light of those changes.

_{[1] SS 2000, c. E-7.22.}

_{[2] South West Terminal Ltd. v Achter Land, 2023 SKKB 116 at para. 40.}

_{[3] 2017 BCSC 1129 (“Johal”) at paras. 36 and 42.}

_{[4] SBC 2001, c. 10.}

_{[5] SBC 2010, c. 13.}

_{[6] Electronic Transactions Act, SBC 2001, c.10 at s.1}