
Thanks to the technological revolution of recent years, more and more companies are moving away from paper documents to use technological tools and electronic media. With Quebec’s lock-in extended until May 4, 2020, electronic signatures are a secure and efficient solution for companies wishing to continue their activities and complete transactions remotely.
With the adoption of the Act respecting the legal framework for information technology, legislation has come to recognize the various forms of signature [1 ], whether handwritten, biophysical or electronic. What emerges is not the signing process, but the importance of establishing a person’s identity, consent and intention to be bound by an official document.
Several signature technologies have been developed to enable documents to be signed via a computer or smart device. To sign documents securely, you need to evaluate these technologies and familiarize yourself with their terms and conditions. Although an electronic signature is qualified as a “signature” under the law, proof of the integrity and origin of this signature is not to be neglected. [2]
There are also a number of things to consider before using an electronic signature. Here are some questions to ask:
- Does the solution meet the criteria for guaranteeing the identity and consent of the signatory?
- Where are supplier data stored to ensure confidentiality and compliance with regional regulations?
- Does the electronic solution comply with the Civil Code of Quebec and Quebec’s laws of evidence?
Distinguishing between electronic and digital signatures
The two types of signature do not have the same level of reliability. In the broadest sense, an electronic signature is a signature affixed to an electronic medium. This is the case of a handwritten signature that has been digitized, e-mail signatures, clicking on an “I accept” button, entering one’s name in a PDF file or any other similar concept.
The digital signature is also an electronic signature, which uses a cryptographic (encryption) mechanism to guarantee the confidentiality and integrity of the document, as well as the authentication of the signatory. Basically, a digital signature is considered authentic because it provides proof of the signatory’s identity, is forgery-proof, non-reusable, unalterable and irrevocable.
Digital signatures are therefore the most secure way of signing documents remotely. CertifiO and ConsignO are examples of solutions that meet these requirements [3].
The following points should also be considered when selecting a technology program so that it :
- allow simple authentication of signatories by sending a password by SMS or e-mail, in order to identify them
- allows more than one person to sign
- to sign more than one document
- track document status and send notifications
Be that as it may, recent case law indicates that the courts are quite permissive [4] in their assessment of signatures, as the use of technology has become a common habit. They confirm that interpretation must be done in context [5 ], without being tied to a particular technology or medium. On the other hand, the fundamental functions of identification and consent must be applied, regardless of whether the signature is handwritten or electronic.
So, to avoid any unpleasant surprises, we recommend opting for a digital signature rather than an electronic signature with image or PDF.
[1] Article 39 of the Act respecting the legal framework for information technology; Article 2027 of the Civil Code of Québec;
[2] Antoine GUILMAIN and François SÉNÉCAL, ” Commentary on the Tabet v. Equityfeed Corporation – Electronic signature: two steps forward… three steps back!” Repères, September 2017, EYB2017REP2301;
[3] Note: This is based on a summary review of the terms and conditions as of the date hereof.
[4] Available online: http: //www.lccjti.ca/definitions/signature
[5 ] R. v. McIvor, [2008] 1 S.C.R. 285, EYB 2008-131142, par. 30.