In what appears to be the first decision of its kind, the British Columbia Labour Relations Board (the “Board”) recently accepted electronically signed union membership cards submitted in support of a union certification application.
However, the Union didn’t use the ordinary pen and paper practice of signed membership cards and opted instead to use electronically signed membership cards. The cards in question were created using an e-signature software program, with mandatory “Name”, “Signature” and “Date” fields, and sent to prospective union members via email. The recipients could then sign using either a “draw” function (with finger or stylus) or a “type” function. In the latter case, the program automatically converted the typed name into a font which resembled handwriting. The e-signature program also generated an audit trail indicating the dates and times at which the blank cards were created, sent to the recipients, viewed, signed, and sent back to the Union organizer, and the IP addresses of the devices used at each step.
At the Union’s certification application, the issue was whether the electronic signatures met the requirement in the Labour Relations Regulation (the “Regulation“) that “a membership card must be signed and dated at the time of signature”. Given the novelty of the issue, the Board in Working Enterprises Consulting & Benefits Services Ltd v United Food and Commercial Workers International Union, Local 1518, 2016 CanLII 29625 (BC LRB) elected to provide written reasons.
Interestingly, the employer did not oppose the certification application.
Typed Signatures Rejected
The Board reviewed the audit trail and the cards, and commented that the mandatory nature of the name, signature, and date fields provided assurance that the cards had been signed and dated at the time indicated. However, the Board rejected a card that appeared to have been signed using the “type” function, commenting that this card was “no different than a pen and paper printed block signature in quotation marks”.
Demonstrated Reliability and Authenticity
The Board also stated that in future, it would “expect a similar demonstration” of reliability and authenticity of the date and signing of cards as that provided by the audit trail.
Interestingly, this seems to set a standard regarding proof of authenticity that the Board has not historically required for traditional pen-and-ink signatures. The requirement seems inconsistent with the Board’s comment in the same decision that “[a] challenge to the reliability of membership evidence must be supported by evidence of a relatively high degree of probative value”. The Board also took no issue with the Union’s assertion that the Board ordinarily accepts paper forms without attempting to determine whether the forms were signed by the individuals to whom the signatures were attributed, or on the dates indicated.
The Board also held that the electronic signatures in this case complied with British Columbia’s Electronic Transactions Act (the “Act”). The Act itself does not include an audit requirement; it expressly provides that “[i]f there is a requirement under law for the signature of a person, that requirement is satisfied by an electronic signature”. The question of whether the Board’s requirement for an audit trail is consistent with the Act may arise in future litigation.