A private member’s bill was recently introduced in the Ontario Legislative Assembly to amend the Electronic Commerce Act, 2000 (Act) so it would apply to documents that create or transfer interests in land. Bill 96, the Electronic Commerce Amendment Act, 2012, is directed towards facilitating the use of electronic signatures in real estate transactions.
Bill 96, introduced on May 17, 2012, would:
- remove from the Act the present exclusion of documents, including agreements of purchase and sale, that create or transfer interests in land and require registration to be effective against third parties;
- make real estate transaction documents subject to the reliability requirements for electronic signatures set forth in subsection 11(3) of the Act; and
- remove the current exclusion of documents of title from application of the Act.
The two MLAs sponsoring the Bill claim that the amendments are designed to improve transaction efficiency by reducing the time required to complete real estate deals. The Bill is largely in reaction to complaints from realtors that the current system of scanning and faxing printed real estate documents is cumbersome and inefficient.
The Act was based on the Uniform Electronic Commerce Act (Uniform Act), adopted in 1999 by the Uniform Law Conference of Canada, and was designed to remove barriers to the legally effective use of electronic communications. The Uniform Act pre-dated the use of electronic land registration and a general acceptance and understanding of electronic transactions. Real estate documents were excluded from the Uniform Act in light of the Statute of Frauds, requiring that agreements creating an interest in land must be in writing, and out of an abundance of caution relating to dispositions of real property.
The Uniform Act was itself amended in November 2011 to remove the exclusion of documents creating or transferring an interest in land. However, the Uniform Act amendment did not go on to impose the signature requirements of section 10 of the Uniform Act as is done by section 1 of the Bill.
Removing the exclusions from the Act is entirely consistent with modern real estate practice and the amended Uniform Act. However, without addressing the details of requirements to ensure reliability of signatures, the amended Act will largely default to whatever systems are implemented by realtors to process real estate agreements (as distinct from e-registration of documents within the land titles system).
In response to introduction of the Bill, the Ontario Real Estate Association (OREA) has indicated that realtors and their clients would access agreements of purchase and sale through a central portal. No details have yet been provided by the OREA as to the requirements for acquisition and processing of electronic signatures and documents within this system, nor of the applicable security standards or access and privacy policies.
Without appropriate policies and procedures being implemented there is some risk that e-signatures will be held invalid for insufficient reliability. The legislature would be well-advised to consider draft regulations under subsection 32 (c) of the Act prior to passing the Bill.