Anyone these days can generate an emoji, but without ample evidence to confirm the source, its use is neither efficient, nor reliable, says Bob Aaron.
Is it possible to buy or sell real estate by attaching an electronic emoji to an agreement? The question arises in the wake of a widely publicized Saskatchewan court decision about an order for 87 tonnes of flax.
Kent Mickleborough texted Swift Current farmer Chris Achter a picture of a contract to buy the flax in November, 2021, adding “please confirm flax contract.” The parties had a history of confirming contracts by text messages.
Achter texted back a thumbs-up emoji, but failed to deliver the grain.
Mickleborough sued Achter, and last month Judge Timothy Keene ruled that the emoji met the signature requirements for a binding contract under the province’s electronic document legislation.
The judge awarded Mickleborough more than $82,000 in damages since the price of flax had increased after the exchange of test messages.
This decision could open the way for real estate contracts in Ontario to be signed by attaching electronic emojis, but if the practice becomes commonplace here, it is not without serious problems.
First, a little history. A thousand or so years ago, only the upper classes in England were literate and could sign their names. The poorer classes would often prick their right thumbs to draw a drop of blood, and impress a document with their thumbprints.
Since then, we seem to have gone from signing documents with a thumbs-down imprint, to using a thumbs-up emoji. Plus ça change, it seems – the more things change, the more they stay the same.
On this topic, I am reminded of a decision of the Ontario Court of Appeal back in 1989 when fax machines were coming into vogue, and the question arose whether a real estate contract could be signed by fax transmission.
The late Justice Sydney Robins upheld the validity of a faxed signature, writing, “Where technological advances have been made which facilitate communications and expedite the transmission of documents we see no reason why they should not be utilized. Indeed, they should be encouraged and approved.”
Ontario got its first Electronic Commerce Act in 2000. It established that electronic signatures are the functional equivalent of ink signatures on paper documents if both parties have agreed in advance to use them.
The use of electronic signatures increased exponentially in the wake of the COVID epidemic, and now real estate documents are typically signed by using programs like DocuSign, Adobe Sign and the remote signing portals of software like LawyerDoneDeal. Those and similar programs are reliable because they have built-in security features so that the origin and validity of an electronic signature can
be traced and verified.
In the Saskatchewan flax case, there was a chain of texts which the judge used to verify the source and validity of the emoji.
Now virtually anyone with a computer, tablet or smart phone can generate an emoji, but without ample backup evidence to confirm the source of a thumb image on a real estate contract, its use is not particularly efficient or reliable.
As a result, I do not anticipate that the use of emojis on Ontario real estate contracts will become ubiquitous anytime soon.