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Classification of Law

Common Law and Civil Law (Quebec)

Common law systems originated in the Middle Ages in England, and while dependent on a system of written laws, place greater emphasis on legal precedent and court decisions to interpret how a law should be enforced. Common law countries place greater importance on evidence and the history of similar situations, based on the principle that facts and interpretation should be treated consistently over time. Common Law countries cover more than 30% of the world, including most of North America, the U.K., parts of Africa, Southeast Asia and most Commonwealth countries.

With the exception of the province of Quebec, all provinces and territories in Canada are common law jurisdictions. Quebec is a civil law jurisdiction based whose law is based primarily on the Quebec Civil Code, in addition to legislation that would apply to e-signatures specifically.

eSignature Legality Summary

Under Canadian law, a written signature is not necessarily required for a valid contract - contracts are generally valid if legally competent parties reach an agreement, whether they agree verbally, electronically or in a physical paper document. To prove a valid contract, parties sometimes have to present evidence in court. While it may be difficult to prove verbal contracts or electronic contracts formed by email or simple click-through arrangements, leading electronic signature solutions can be used to create electronic records that are admissible in evidence under provincial legislation pertaining to (electronic) evidence and the Canada Evidence Act, to support the existence, authenticity and valid acceptance of a contract.

Use Cases for Standard Electronic Signatures (SES)

Use cases where an SES is typically appropriate include:

  • HR documents such as regular employment contracts, non-disclosure agreements, employee invention agreements, privacy notices, benefits paperwork and other new employee onboarding processes
  • commercial agreements between corporate entities including non-disclosure agreements, purchase orders, order acknowledgements, invoices, other procurement documents, sales agreements, distribution agreements, service agreements
  • consumer agreements including new retail account opening documents, sales terms, services terms, software licenses, purchase orders, order confirmations, invoices, shipment documentation, user manuals, policies
  • residential and commercial lease agreements except, in some cases, termination notices regarding residential lease agreements
  • software license agreements
  • certain intellectual property licenses and transfers such as trademark licenses and assignments

Use Cases That Are Not Typically Appropriate for Electronic Signatures or Digital Transaction Management

Use cases that are specifically barred from digital or electronic processes or that include explicit requirements, such as handwritten (e.g. wet ink) signatures or formal notarial process that are not usually compatible with electronic signatures or digital transaction management.

  • Notarization, handwritten, or witness - wills and codicils
  • Notarization, handwritten, or witness - trusts created by wills and codicils
  • Notarization, handwritten, or witness - powers of attorney and/or personal directives, to the extent that they are in respect of an individual’s financial affairs or personal care
  • Notarization, handwritten, or witness - records/contracts that create or transfer interests in land
  • Notarization, handwritten, or witness - guarantees
  • Notarization, handwritten, or witness - negotiable instruments
  • Notarization, handwritten, or witness - documents of title (except contracts relating to the carriage of goods)
  • Notarization, handwritten, or witness - domestic contracts (marriage contracts, cohabitation agreements, separation agreements)

    The Quebec Civil Code use cases include:
  • Notarization or witness - renunciation of certain entitlements, such as a spouse’s rights in the family patrimony (Arts. 423-424), a spouse’s right to partition of the other spouse’s property upon dissolution of a partnership of “acquests” (Art. 469); a successor’s right to a succession (Arts. 646, 649), and the rights of a beneficiary of a trust (Art. 1285)
  • Notarization or witness - marriage contracts (Art. 440) and dissolution of a civil union by joint declaration (Arts. 521.12-521.19)
  • Notarization or witness - wills (Arts. 712 ff: must be in the form of a notarial will, holograph will or will made in presence of a witness)
  • Notarization or witness - declarations of co-ownership in real property (Art. 1059)
  • Notarization or witness - inventory made by an administrator of a trust (Art. 1327)
  • Notarization or witness - subrogation (Art. 1655)
  • Notarization or witness - providing a gift of property (Art. 1824)
  • Notarization or witness - an individual’s mandate for his/her personal care or administration of his/her property, in anticipation of that individual’s incapacity (Art. 2166)
  • Notarization or witness - granting of certain kinds of “hypothecs”, e.g., mortgage for real property (Art. 2693)

Local Technology Standards

As part of its minimalist, technology-neutral approach to electronic signature, there are no federal laws requiring the use of specific technology for a legally enforceable electronic signature, either for digital certificates or otherwise, subject to standards of “reliability” under the legislation governing the validity/enforceability of electronic signatures in some provinces. Some specific requirements may be in place in limited circumstances, where prescribed federal laws apply.

DISCLAIMER: The information on this site is for general information purposes only and is not intended to serve as legal advice. Laws governing electronic signature may change quickly, so DocuSign cannot guarantee that all the information on this site is current or correct. Should you have specific legal questions about any of the information on this site, you should consult with a licensed attorney in your area.

Last updated: November 01, 2019