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Evidence - Signatures. 1475182 Ontario Inc. o/a Edges Contracting v. Ghotbi
In 1475182 Ontario Inc. o/a Edges Contracting v. Ghotbi (Div Ct, 2021) the Divisional Court considered electronic signatures as adequate to satisfy a statutory signature requirement (here the s.13 Limitations Act, 2002):The Signature Requirement
[42] An acknowledgment of indebtedness is not effective, for the purposes of s. 13 of the Act, unless it is in writing and signed by the debtor or the debtor’s agent.
[43] There is no question that the purported acknowledgment here was in writing. The question is whether it was signed.
[44] The trial judge concluded that the requirements of s. 13(10) had been met. In my view, he was correct, although I would reach that conclusion in a slightly different manner than he did.
[45] The trial judge based his conclusion on the authenticity of the June 2, 2016 text messages, citing in support of that conclusion the case of Lev v. Serebrennikov, 2016 ONSC 2093. There, Patillo J., sitting as a single judge of the Divisional Court, considered whether an email, with the debtor’s name on it, could satisfy the requirements of s. 13 of the Act. He found that it could, saying “the issue in every case will be one of fact concerning authenticity.” (Para. 24).
[46] 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.
[47] 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.
[48] 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.
[49] 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.
[50] I would also find that the express requirement of a signature is met in this case. Dr. Ghotbi used his cellular telephone to send 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.
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