Can A Text Be A Legal Signature
Can a text message be a legal signature? A 2021 decision of the Ontario Divisional Court demonstrates that, in certain circumstances, the answer is yes.
Edges Contracting performed certain renovation work on the defendant's dental practice but was not fully paid for that work. The last payment was in March 2016. Edges did not sue until May 2018.
With few exceptions, a claim must be brought within two years of when the wrong occurred. However, in this case, because the claim was for liquidated damages, there was an exception. That exception applied where the debt was clearly and unequivocally acknowledged in writing and signed.
In June 2016, Edges had sent a text message to the defendant asking whether it could pick up the cheque. In response, the defendant sent a text stating: "The balance will be paid once everything is completed as per your agreement. No payment will be made until everything is clear. I'm going to hire a third-party inspector and their fees will be deducted from your payments too."
At trial and on appeal, the defendant argued that the text message did not clearly state the amount of the debt and was not a valid acknowledgement because it did not have a signature. However, both the trial judge and appeal court disagreed. With respect to stating the amount of the debt, both courts agreed that no such requirement existed.
On the thornier issue of whether a unsigned text constituted a signature the courts determined: I agree that the signature requirement of s. 13(10) is grounded in concerns about authenticity. But the plain wording of the section cannot simply be ignored, in my view, even if the court is satisfied about authenticity by a means other than a signature.
On the facts of the case at bar, Dr. Ghotbi's texts were obviously not "signed" in the traditional sense. But s. 13(10) does not prescribe any particular type of signature.
The world is changing. Everyone knows that. We live in a digital world now, much more than was the case when the Act came into force in 2002. It is incumbent upon the court to consider not just traditional means of affixing one's signature to a document, but other, more modern means, including digital signatures.
In this instance, there is no question about the authenticity of the text messages. There is no question that Dr. Ghotbi was the author of the June 2, 2016 texts in issue. From that perspective, the underlying purpose of s. 13(10) has been satisfied.
I would also find that the express requirement of a signature is met in this case. Dr. Ghotbi used his cellular telephone to send [page281] and receive texts with Mr. Lupo. Dr. Ghotbi, like all other cellular telephone users, has a unique phone number linked with his phone. In fact, there will undoubtedly be other unique identifiers associated with Dr. Ghotbi's phone including, without limitation, an International Mobile Equipment Identifier (IMEI) number. These unique identifiers provide, in effect, a digital signature on every message sent by the user of that particular device. Again, there is no dispute that the user of the device was Dr. Ghotbi and that he sent the texts in issue. In my view, that digital signature is sufficient to meet the requirements of s. 13(10) of the Act.
The lesson: Courts will adapt the law to new circumstances such as evolving means of communication to prevent potential wrongdoing. If the requirement of a signature is to ensure authenticity, a unique identifier like a phone number attached to the text will likely be sufficient evidence of authenticity.
1475182 Ontario Inc. o/a Edges Contracting v Ghotbi et al, 2021 ONSC 3477 2021onsc3477.pdf (canlii.org)
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