Action in debt fails for lack of a valid electronic signature
Had emails or text messages included canned “signatures”, limitation period likely would have been extended
In a case before the British Columbia Civil Resolution Tribunal, Lesko v. Solhjell, the applicant, Daniel Lesko, was seeking to recover four alleged loans made to the respondent, Annette Solhjell. The respondent disputed that the amounts were loaned, instead saying they were gifts.
Principally what was at issue was whether the respondent had acknowledged the debt in such a way that would have extended the limitation period on collecting the amounts as the action was commenced outside of the limitation period. Section 24 of he Limitation Act says that a limitation period may be extended if a person acknowledges liability before the expiry of the limitation period. Section 24(6) states that an acknowledgement of liability must be:
a) in writing;
b) signed by hand or by electronic signature as defined in the Electronic Transactions Act;
c) made by the person making the acknowledgement; and,
d) made to the person with the claim.
The text message and email evidence was summarized by the tribunal:
20. The evidence before me is that the applicant sent a text message to the respondent on January 17, 2017 requesting repayment of the money he was owed. On January 19, 2017, the respondent replied by email stating “I know I still owe you money. I have not forgotten”, and later “I can’t pay”. I find the applicant made a demand for payment on January 17, 2017, and the respondent failed to perform. In his additional submissions, the applicant again stated that he emailed the respondent in January 2017 to pay him back, but that he decided to give her more time. Therefore, I find January 17, 2017 was the date on which the applicant’s claim was discovered. According to the Limitation Act, the applicant was required to start his dispute before January 17, 2019.
The applicant referred to a subsequent emails and text messages up to August 24, 2017 that acknowledged the debt and argued that they triggered the extension provisions in the Limitation Act. The tribunal had no difficulty in determining that these were in writing, made by the respondent to the applicant. However, the issue turned on whether the “acknowledgement” was signed for the purposes of the Electronic Transactions Act.
The Electronic Transactions Act defines an electronic signature as information in electronic form that a person has created or adopted in order to sign a record that is in, attached to, or associated with the record. The tribunal followed Johal v. Nordio, in which the court stated that the Electronic Transactions Act focuses on whether the sender of the electronic message intended to create a signature. In that case, the email in question included a relatively standard email “signature”: name, position and contact information, which the court found satisfied the requirements of section 24(6) of the Limitation Act.
No such information was included in the email or text messages exchanged in this case, so the tribunal concluded that the limitation period expired on January 17, 2019, roughly two weeks prior to commencement of the action on February 1, 2019. The respondent was not required to repay the amounts.