Electronic Commerce Act 2000
Fifteen Hot Tips and More
Toronto Computer Lawyers’ Group
December 2000
John D. Gregory
Ministry of the Attorney General
Outline: ECA 2000
Status of the Ontario Act
 Principles and Application of the Act
 What you can do with the ECA
 What you can’t do with the ECA
 What you must be careful of with the ECA
 How this compares with elsewhere
 What’s next?
 Sources
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Status of the ECA 2000

Electronic Commerce Act 2000
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Statutes of Ontario 2000, c. 17
In force October 16, 2000
Comprehensive minimalist legislation
 Interprets most Ontario laws
 Sources:
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United Nations Model Law on E-Commerce
Uniform Electronic Commerce Act
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Principles of E-Commerce Act
“media neutral” - the law of electronic
communications is the same as the law of
any other medium; the Act merely
accommodates the differences of media.
 “technology neutral” - the law does not
favour one technology over another.
 “removes barriers” - the Act does not
regulate e-communications or harmonize
existing laws that already govern them.

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Principles of E-Commerce Act
General rule: no discrimination
 General protection: only on consent
(express or implied)(real and relevant)

–
media bias or reality check?
“Functional equivalents”: what an
electronic document has to be or do in order
to work as a document on paper
 NOTE: e-documents do not have to be more
reliable than paper documents

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Application of E-Commerce Act
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ALL legal relationships under Ontario law
BUT:
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named types of documents
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wills, most powers of attorney
most land transfers
most negotiable instruments
election documents - municipal and provincial
electronic communications already provided for
by law (allowed, regulated, prohibited)
biometrics, unless consent or statutory authority
power to add to list by regulation (safety
valve)
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What you can do with the ECA
1. Use an electronic document when
something has to be “in writing”
 The e-document has to be “accessible so as
to be usable for subsequent reference”
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Accessible to whom? Objective or subjective?
Usable for the same purpose as the writing
How long is “subsequent”?
No standard of integrity beyond this.
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What you can do with the ECA
2. Sign with an e-signature a document
that the law requires to be signed.
 “Electronic signature” - includes intention
to sign, link with signed document
 VERY open-ended definition
 No rule for attribution
 No standard of integrity beyond definition
 Authority for govt to regulate methods
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What you can do with the ECA
3. Use an electronic document as an
“original”
 Can have an electronic original or an
electronic version of another original
 Key is (variable) assurance of integrity of
the information
 Is format part of the information?
 Note PPSA exception for chattel paper
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What you can do with the ECA
4. Retain electronic records to satisfy a
retention requirement
 E-documents retained may be originals or
electronic reproductions
 Key is integrity again
 Evidence of transmission to be kept
 Retain for same period, accessible to same
people as paper records
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What you can do with the ECA
5. Enter into contracts electronically
 Clicking, touching, speaking to computer
are all acceptable methods
 Can automate the offer and the acceptance
 The usual legal requirements remain:
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Intention to contract
Consideration
Nothing about when a message is effective
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What you can’t do with the ECA
1. Compel someone to deal with you by
electronic communications
 Consent rule mitigates discomfort levels
 Consent rule mitigates security risk
 Consent may be inferred from conduct if
reasonable and relevant
 Consent rule applies to public bodies too
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What you can’t do with the ECA
2. Create a unique electronic document
 Different from attribution or integrity
 Technologically not yet clear
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distinct from immobilizing document
So no negotiability, documents of title
 Carriage of goods is exception
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target for technology rather than affirmation of
existing capacity
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What you can’t do with the ECA
3. Ignore consumer protection and
privacy law
 Consumer protection is under separate study
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published principles aim mainly at disclosure
Alberta and Manitoba have drafted regulations
status of post-transaction notices is hot in US
Privacy overlies the whole topic
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Federal laws take effect in two weeks
Ontario legislation is possible
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What you can’t do with the ECA
4. Skip reading the law applicable to your
facts
 The ECA yields to other law that prohibits,
regulates or allows electronic documents
 Display and delivery requirements still
apply
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but if you can opt out, you can use e-docs
you may be able to comply electronically
Rules of court, land transfers, etc etc
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What you can’t do with the ECA
5. Seal a document
 Unclear how to do an electronic seal
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One size does not fit all:
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cf. Court seal for electronic writs
E-seal is much like e-signature
function: consideration or solemnity
function: integrity of document
function: assurance of source of document
ECA authorizes regulations on seals
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What you have to be careful of
1. Security of e-documents and esignatures
 A legal standard is not necessarily a prudent
standard
 Party autonomy means risk as well as
choice
 Consent principle provides some protection
 Security for confidentiality is also important
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What you have to be careful of
2. Providing information electronically
 Information has to be accessible for
subsequent use and capable of being
retained
 You can’t inhibit printing or downloading
 You can’t provide information by posting on
a web site
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except by e-mail or in course of transaction
except where the law provides otherwise
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What you have to be careful of
3. Encouraging mistakes
 An individual dealing with an electronic
agent (any web site) can void transaction for
mistake
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if meets conditions, notably does not keep
benefit
Could be hard if transaction is in a series
 Provide means to avoid or cure mistakes
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“Are you sure”?
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What you have to be careful of
4. Has your message been received?
 The ECA has a double rule on receipt:
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designated system: presumed received when
accessible and processible
undesignated system: presumed received when
addressee becomes aware of accessibility
Evidence of accessibility may be scarce
 When in doubt: get acknowledgement
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What you have to be careful of
5. Public bodies’ IT standards
 Public bodies can require that incoming
documents meet IT standards
 No form requirement for these standards
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may be as simple as word processing type
most public bodies will be flexible, OTC rule
Standards must be communicated
 Harmonization of IT standards - likely?
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What you have to be careful of
6. Existing form requirements in
contracts
 The ECA applies to legal requirements for
writing, signature, and others
 The ECA does not interpret a contractual
rule e.g. that something has to be in writing
 Parties to such agreements will have to cure
them by agreement
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How ECA compares … to C-6
1. Privacy in C-6 not UECA
 2. Electronic documents:
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C-6 is opt-in
standards are to be in regulation
“secure electronic signatures”
3. Electronic evidence:
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C-6 enacts Uniform Electronic Evidence Act,
and optional presumptions
Ontario enacted UEEA in Red Tape Reduction
Act 1999 Sch B section 7 (in force June 30/00)
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How ECA compares … to ROC
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Saskatchewan Bill 38 (in force Nov 1/00)
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Manitoba Bill 31 (in force Oct 23/00 +-)
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MB Bill is “opt in” for functional equivalents
MB has some consumer protection too
Nova Scotia Bill 61 (in force Dec 1/00)
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basically the same, except govt filing rules
basically the same as UECA
British Columbia Bill 32 (1st reading)
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BC Bill has no special “government” rules
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How ECA compares … to ROC
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Yukon Bill 29 (3rd reading)
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Quebec Bill 161 (2nd reading)
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basically the same as UECA
different approach, more detailed rules
more on integrity of documents and signatures
rules on certification processes for signatures
rules on establishment of tech. standards
public consultation already on draft bill
New Brunswick, Alberta to come soon
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How ECA compares … to USA
Uniform Electronic Transactions Act
(UETA)
 UETA and ECA draw on UN Model Law
 UETA focuses on “record”
 Consent, functional equivalence +- the same
 UETA allows for “transferable records”
 UETA passed in half the states in a year
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How ECA compares … to USA
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Federal legislation - E-SIGN
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Imposes UETA standards on state laws
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Electronic Signatures in Global & National
Commerce Act in force October 1/00
no higher standards allowed for private use
public agencies may require more security
Consumer protection carve-outs
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must demonstrate capacity to receive e-docs
especially post-default notices
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What’s next

Electronic signatures
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UN Model Law on Electronic Signatures
 reliability
standards
 duties of parties: signature, CA, relying party
 recognition of foreign certificates and signatures
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GO-PKI and others
 identity
certificates and role certificates
 who certifies lawyers?
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Smart cards
 signatures
vs access controls
 privacy rules
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What’s next
Licensing - no sign of UCITA in Canada
 Jurisdiction
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few cases, more or less like US cases
regulatory jurisdiction - Alberta cases
enforcement of judgments - Hague work
Dispute resolution - signs of interest
 Taxation - the big issue
 Connectivity - serious initiatives
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Sources
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Electronic Commerce Act 2000
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Uniform Electronic Commerce Act
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www.ulcc.ca/alri/ulc/current/euecafa.htm
United Nations Model Laws
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http://www.ontla.on.ca/Documents/StatusofLegOUT/
b088ra_e.htm
http://www.unictral.org/english/texts/electcom/mlec.htm (Model Law on Electronic Commerce)
http://www.uncitral.org/english/sessions/unc/unc34/483e.pdf (Model Law on Electronic Signatures)
Uniform Electronic Transactions Act
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http://www.law.upenn.edu/bll/ulc/ulc.htm#ueccta
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Sources
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Canadian legislation
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Saskatchewan: The Electronic Documents and
Information Act,
http://www.legassembly.sk.ca/bills/HTML/bill038.htm
Manitoba: The Electronic Commerce and Information
Act, http://www.gov.mb.ca/chc/statpub/free/pdf/b311s00.pdf
Nova Scotia: the Electronic Commerce Act
http://www.gov.ns.ca/legi/legc/bills/58th_1st/3rd_read/b06
1.htm
British Columbia: the Electronic Transactions Act
http://www.legis.gov.bc.ca/2000/1st_read/gov32-1.htm
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Sources
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Yukon: the Electronic Commerce Act (Bill 29)
http://www.gov.yk.ca/leg-assembly/progress.html
Quebec: An Act to establish a legal framework for
information technology
http://www.assnat.qc.ca/eng/publications/Projetsloi/publics/00-a161.htm.
Canada: Personal Information Protection and Electronic
Documents Act
http://www.parl.gc.ca/36/2/parlbus/chambus/house/bills/go
vernment/C-6/C-6_4/C-6_cover-E.html
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Sources
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Consumer Protection
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Principles for Consumer Protection
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Ontario consultation 2000
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http://www.ccr.gov.on.ca/pdf/EnConsProt.pdf
Manitoba draft regulations on consumers
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Government, consumer, business group, Nov 1999:
http://strategis.ic.gc.ca/SSG/ca01180e.html
http://www.gov.mb.ca/cca/cpa/in_age.html
Public Interest Advocacy Centre on UECA
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http://www.piac.ca/uecalet.htm
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Sources
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Privacy
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Ontario consultation 2000
http://www.ccr.gov.on.ca/pdf/PrivacyPaper.pdf
U.S. Legislation and Policy
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Uniform Electronic Transactions Act
http://www.law.upenn.edu/bll/ulc/ulc.htm#ueccta
http://www.uetaonline.com
Uniform Computer Information Transactions Act
http://www.law.upenn.edu/bll/ulc/ulc.htm#ucita
http://www.ucitaonline.com
State, federal and international law:
http://www.bmck.com/ecommerce
http://www.mbc.com/
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