Lead the Scene and Keep it Green
By Sander Lekas
Reynolds Mirth Richards Farmer LLP
AMSC Casual Legal Service Provider
Municipalities seeking a more cost and time-efficient mechanism for entering into contractual relations may wish to transition away from paper forms such as permit applications, waivers, and contracts in favour of electronic forms. Removing paper from the equation eliminates the need for physical signatures, but also poses its own challenges. Alberta’s Electronic Transactions Act (ETA) provides guidance on how to ensure your electronic forms are legally binding. All section references below refer to the ETA.
Section 20 confirms that public bodies which have the power to deal with paper documents may elect to do so electronically. Section 8 clarifies that nothing in the ETA requires an individual or public body to use, provide, or accept information or a record in electronic format without providing their consent. However, consent may be inferred through conduct if it is reasonable to believe the consent is genuine and relevant to the information or records. For example, if a ratepayer completes an electronic form on a municipality’s website, it is reasonable to infer the ratepayer has consented to providing that information in an electronic form. Unlike individuals, the ETA at section 19 provides that public bodies’ consent cannot be inferred and must be explicit.
Section 16 confirms that a legal requirement to sign a record is satisfied by affixing an electronic signature. However, this is subject to the requirement that, in light of the circumstances, the electronic signature is reliable for the purposes of identifying the person, it is clear that the electronic signature is associated with the particular record, and it is reliable for the purpose for which the record was created. Section 1(1)(c) of the ETA defines “electronic signature” as electronic information that a person creates or adopts in order to sign a record and that is in, attached to, or associated with the record. Accordingly, a legally binding electronic signature may be achieved by affixing an electronically generated signature, typing a name into a signature line, or simply clicking “I agree” at the end of an electronic form. In the latter case, be sure to require that the individual state their name elsewhere in the form.
Section 22 imposes some additional requirements on public bodies using electronic signatures. Generally, the signature must satisfy the information technology standards set by the public body itself. This allows a municipality to determine its own standards for the creation and reliability of electronic signatures that the municipality will accept. As a practical note, when using electronic forms, ensure that users must clearly state their identity. Make sure that in cases of generic electronic signatures such as checkboxes, it is abundantly clear what the user is agreeing to. This can often be accomplished with an accompanying statement, such as “I have read and understand this document and agree to be bound by the foregoing terms and conditions”.
To access AMSC’s Casual Legal Helpline, AUMA members can call toll-free to 1-800-661-7673 or email firstname.lastname@example.org and reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please contact email@example.com, or call 310-AUMA (2862) to speak to AUMA’s Risk Management staff. Any Regular or Associate member of the AUMA can access the Casual Legal Service.
DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.