Attention: AMSC Members – Please distribute to all appropriate personnel
Understanding the Electronic Transactions Act
By Daina Young
Reynolds Mirth Richards Farmer LLP
AMSC Casual Legal Service Provider
Municipalities generally have the authority to create electronic forms and contracts (including waivers of liability) that have individuals indicate their consent to be bound by the contract electronically by using an “electronic signature”. This is often more efficient and less costly than requiring individuals to provide hard copy forms with physical signatures for all municipal contracts. However, there are a number of considerations arising from the application of Alberta’s Electronic Transactions Act (the “ETA”).
First, the ETA does not limit the operation of other enactments, such as the Municipal Government Act (the “MGA”) that expressly authorize, require, prohibit or regulate the use of information or records in electronic form; or which require information or a record to be posted or displayed in a specific manner or to be transmitted by a specific method. The ETA must be read alongside the MGA.
Second, the ETA indicates that a person is not required to use, provide or accept information or a record in electronic form unless that person consents to doing so. “Consent” to enter into electronic transactions may be inferred from the person’s conduct, provided it is reasonable to do so. If a municipality makes an electronic waiver available, if individuals voluntarily execute the waiver electronically, it is likely reasonable to infer that they consent to using the electronic form. If, however, an individual does not consent to using an electronic form, then the municipality should be prepared to provide hard copy versions of the form.
For documents that do require a signature (such as a waiver of liability), an “electronic signature” is sufficient to satisfy that requirement. In order for an electronic signature to be legally binding, it must be reliable for the purpose of identifying the person, and the signature must be associated with the relevant record and be reliable for that record’s purpose. “Electronic signature” is defined as “information that a person creates or adopts in order to sign a record and that is in, attached to or associated with the record.” An electronic signature does not necessarily need to resemble a handwritten “signature” in the traditional sense – it can take different electronic forms, provided that it can be properly associated with the relevant record and be reliably attributed to the person who “signed” the record. For example, clicking “I agree” at the end of an electronic waiver, could constitute an “electronic signature”.
Public bodies such as municipalities are permitted to use electronic documents provided they generally have the power to deal with paper documents. However, public bodies are subject to some additional requirements when using electronic signatures. Specifically, if a statute indicates that a signature must be provided in a document submitted to a public body, an electronic signature can be used to satisfy that requirement only if the electronic signature meets information technology standards (as set by the public body itself), and if the signature complies with any requirements set by the public body to ensure the signature’s reliability.
The ability to use and rely upon electronic signatures can be very useful to municipalities. However, municipalities must be careful to ensure that they are complying with the requirements of the ETA and the MGA when allowing or authorizing the use of electronic signatures. In addition, consideration must be given (on a case to case basis) to whether using an electronic signature is appropriate taking into account all of the circumstances including the municipality’s obligations pursuant to the Freedom of Information and Protection of Privacy Act.
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.