Electronic Commerce Act Contract Reference (Required or Not?)
The following is wording that you will find in numerous real estate related documents:
"The parties hereto consent and agree to the use of electronic signature pursuant to the Electronic Commerce Act 2000, S.O. 2000, c17 as amended from time to time with respect to this Agreement and any other documents respecting this transaction."
Do you really need it?
While the use is optional, if someone elects to use it, then their consent is "implied". It is very, very difficult for someone to attempt to deny the use afterwards. However, although, not required, there's no harm in having it.
In fact, it may rather be a good idea.
This wording covers not only the exiting document but any other documents to follow. This is quite helpful. It would be problematic if the Seller thought one thing and the Buyer thought another.
Here is the relevant enabling section of the Electronic Commerce Act:
Use, etc., of electronic information or document not mandatory
3.1(1) Nothing in this Act requires a person who uses, provides or accepts information or a document to use, provide or accept it in an electronic form without the person’s consent. 2000, c. 17, s. 3 (1).
(2) Consent for the purpose of subsection (1) may be inferred from a person’s conduct if there are reasonable grounds to believe that the consent is genuine and is relevant to the information or document. 2000, c. 17, s. 3 (2).
So, the better approach might be to get the other party to agree:
1) To this document now, and
2) To other documents in the future.
Now, the problem is avoided going forward. And, it would be virtually impossible for someone having used an electronic signature for one document to deny it for others later.
If there is to be a change in practice, this would have to be made clear.
It can also involve the issue of “good faith”. That certainly applies to “time periods” related to acceptance etc.
Brian Madigan LL.B., Broker