March 6, 2025
A while back, we wrote an article about a Saskatchewan case that interested us even though we are in Ontario.
In Achter Land & Cattle Ltd. v South West Terminal Ltd., a judge of the King’s Bench (equivalent to the Superior Court in Ontario) ruled that a reply to an email containing a “thumbs up” emoji alone could be valid acceptance of the contract offered in the original email.
Well, the losing party appealed. The Saskatchewan Court of Appeal, on a 2-1 decision, upheld the decision. You might say the appeal judges gave it two thumbs up.
The actual decision turns on a section of the Alberta Sale of Goods Act not found in the Ontario law, but the reasoning of the case could be compelling in Ontario. After all, for many years initials or the letter “X” have been interpreted as a signature. Why not an emoji?
The Electronic Information and Documents Act, in Saskatchewan validates acceptance of a contract expressed:
by an action in an electronic form, including touching or clicking on an appropriately designated icon or place on a computer screen or otherwise communicating electronically in a manner that is intended to express the offer, acceptance or other matter.
Ontario’s Electronic Commerce Act, 2000 defines an electronic signature as “ electronic information that a person creates or adopts in order to sign a document and that is in, attached to or associated with the document;” and goes on to say that subject to reliability and other requirements, “a legal requirement that a document be signed is satisfied by an electronic signature.”.
So, there is no reason that a “thumbs up” emoji may not be found to be adopted as someone’s signature in Ontario if the surrounding evidence supports that conclusion. Evidence of the intent to adopt, and reliability, is still required- much like with any signature.
We will watch to see whether leave to appeal to the Supreme Court of Canada is sought, and if so, whether it is granted.
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