Legal news and trends for Canadian in-house counsel and c-suite executives
Issue link: https://digital.canadianlawyermag.com/i/50884
By Sonja K. Homenuck, Timothy Banks, and Greg Barker Is electronic delivery enforceable? D evelopments in technol- ogy in the last decade have sped up the signing and delivery of contracts. If you are like everyone else, you sign and scan documents, letters, and contracts to others regularly. But should we be comfortable that what has become easy and generally accepted is actually enforceable? Or could there be an enforceability issue with the commer- cial lease, agreement of purchase and sale for land, or other contract that you just completed? Well, unless you have exchanged originally signed copies with the other side, there could be an enforce- ability problem with your contract. In 2000, Ontario adopted the Electronic Commerce Act. Its purpose was to provide a coherent set of rules for the exchange of electronic information, and the effect of the act is that electron- ic documents have become functionally and legally equivalent to their paper- based counterparts. Essentially, the act codified the everyday practice of using e-mail, faxes, and other electronic means of communication to form legal relation- ships by stating that contracts, infor- mation, and other documents are not invalid or unenforceable simply by virtue of their being in an electronic form. It allows the exchange of contracts and other documents via electronic means that cannot be altered, for example, fac- similes or pdf scans. However, s. 31(1) indicates the act does not apply to "documents, including agreements of purchase and sale, that create or transfer interests in land and require registration to be effective against third parties." Therefore, a document that transfers an interest in land and that requires registration to be effect- ive against third parties is specifically excluded from the documents permitted THE COMPLEX MINEFIELD OF IP AND TECHNOLOGY LAW REQUIRES EXPERT NAVIGATION. IP SMART & BIGGAR'S internationally recognized professionals have the technical and legal experience to help you navigate the complex, high-stakes world of IP & technology law. With offices across the country, we are able to work with you to provide and leverage the right skills, knowledge and resources to create unparalleled IP solutions tailored to your unique needs. smart-biggar.ca | Ottawa | Toronto | Montreal | Vancouver 12 • OCTOBER 2010 Untitled-5 1 INHOUSE 12/23/09 2:36:06 PM UNPARALLELED