Electronic Communications Convention - Impact on Quebec 2008

II. Preliminary Comparison of the Instruments

[6] As noted earlier in describing the outline, this Part will discuss the instruments in issue (Section 1) and sketch the broad outlines of the comparison (Section 2).

1 – Brief Introduction to the Instruments in Issue 1.1 – Introduction to the Quebec Law relating to Electronic Documents

[7] The most important enactments to refer to in Quebec law relating to electronic documents are the LFIT Act and the C.C.Q. These two enactments are in fact closely related, in that, first, the LFIT Act influenced the C.C.Q. when it led to the complete and thorough amendment of Divisions VI and VII of Book 7, Title Two, Chapter 1 of the C.C.Q., entitled, respectively, “Media for writings and technological neutrality”[3] and “Copies and documents resulting from a transfer”.[4] Second, these two divisions of the C.C.Q. also refer expressly to the LFIT Act on several occasions, that Act being regarded as the interpretive framework for these articles of the C.C.Q. Third, there were other articles of the C.C.Q. that were also amended by the LFIT Act: articles 2827, 2855, 2860 and 2874, which address certain specific aspects of the law of evidence.

A – LFIT Act

[8] The LFIT Act was adopted in June 2001 and came into force on November 1 of that year. Although it was adopted after most of the laws of the other Canadian provinces, it is generally acknowledged that its treatment contrasts with that of the latter. In our view, and as we shall see in Section 2, while the form of the law is in fact different, and indeed not always very accessible, its substance is not inconsistent, subject to one exception. Again of the issue of substance, the reach of this legislation is very broad; for example, it deals with matters that fall outside the Convention and other Canadian legislation. The matters addressed in the LFIT Act include:

  • rules relating to the liability of electronic actors;
  • provisions relating to the security of documents;
  • provisions relating to the management of electronic documents;
  • measures relating to digital certification;
  • rules governing the use of biometrics;
  • the development of technical standards;
  • etc.

These are all matters addressed in the LFIT Act that are not found in the legislation of other Canadian provinces or in the Convention.

[9] While the form of the LFIT Act is sometimes criticized, it performs three fundamental functions. First, it attempts to eliminate the legal barriers to the use of information technology.[5] Second, it provides actors with a guide in respect of the security of electronic documents.[6] And third, it resolves a number of issues relating to fundamental freedoms.[7] These are three very ambitious functions, rather more ambitious, in fact, than the functions performed by the Convention, which, as we shall see, is primarily limited to the first function.

B – C.C.Q.

[10] In the area of electronic documents, the C.C.Q. was overturned by the LFIT Act, which did away with the former provisions entitled “Computerized records” and replaced them with new provisions referring to “technology-based documents”. Given the direct influence the LFIT Act has had on the C.C.Q., there is no need to say more about it.

1.2 – Introduction to the Convention

[11] In order to establish parallels for comparison, we will first say a few brief words about the Convention, even though it is a familiar document that has been analyzed in the past. The Convention is the product of lengthy discussion going back to the 1980s[8] that included the decisive step taken when the Model Law on Electronic Commerce (the 1996 Model Law) was adopted in 1996. More often than not, the clauses of the Convention amount to the “lowest common denominator” on the subject matter, the Convention being the product of intense negotiations among the States involved. This helps to explain some of the differences from the Quebec law. As well, although the Convention sometimes diverges from the UNCITRAL Model Law on Electronic Signatures (2001), it was inspired by that document.[9]

2 – Brief Introduction to the Comparison

[12] As will be seen later, it seems to us that apart from what is commonly said to be the case, while there are differences in terms of application (2), the Convention and Quebec law are governed by identical principles (1).

2.1 – Common Principles

[13] At first blush, as we said, a hurried commentator will tend to say that the two bodies of rules, the Convention and the Quebec law, are fundamentally different. This is untrue. Notwithstanding comments in the literature criticising the isolated view taken in the Quebec law,[10] it seems to us that while there are dissimilarities, they relate only (1) to the formal aspects, that is, the appearance of the two instruments, which are indeed not at all similar in their construction. As well, where the difference is in substance, it exists only (2) in respect of relatively narrow points and not the basic principles, as we shall see in the next paragraph dealing with their application. As we have noted, (3) the LFIT Act is much more ambitious than the Convention, and it therefore contains more provisions which, while they are not inconsistent with the Convention (except on the issue of the writing, to which we will return), go beyond the scope of the Convention. In fact, as may be seen in the appendix to this document, the provisions of the two documents can be compared in a single table, and it can be seen that both the substance and the matters addressed are very similar. Over and above the differences, obvious similarities can be identified.

[14] First, the two sets of legal rules are intended, first and foremost, to serve a fundamental function: to eliminate the legal barriers to the use of electronic documents;[11] this purpose is expressed in the two instruments, for example, in the expressions “legal certainty” (in the Convention) and “legal security” (in the LFTI). This is expressly stated as a principle in the annex to the Convention[12] and in section 1.1 of the LFIT Act;[13] it is also expressed in comparable manner when the Convention states, in article 8, entitled “Legal recognition of electronic communications”:

1. A communication or a contract shall not be denied validity or enforceability on the sole ground that it is in the form of an electronic communication.

That article is in fact very like section 5, para. 1, of the LFIT Act.[14]

[15] Second, the freedom of the parties, which is a guiding factor in several UNCITRAL conventions and various other international conventions, such as the Vienna Convention on Contracts for the International Sale of Goods[15] (the Vienna Convention), is also a pervasive theme in the two sets of legal rules. The Convention recognizes it both in the annex[16] with respect to the general principles and more specifically in respect of the parties’ choice regarding one of the available technologies;[17] the LFIT Act also affirms this principle in sections 2[18] and 29,[19] the latter section dealing specifically with the transmission technology.

[16] Third and most importantly, the Convention and the LFIT Act, and the C.C.Q. as a result of the LFIT Act, incorporate the twin principles of “technological neutrality” and “functional equivalence”, two fundamental principles that have very often been regarded as the tools that provide for a legal rule not to become rapidly obsolete as change proceeds apace in information technology. While the purpose of the first is to ensure that a law does not favour one technology over another, the second ensures that it is possible to identify the essential functions of a legal concept such as a writing, a signature, the original, and so on, without reference to a particular medium (paper or electronic). These principles are recognized either expressly or by implication in both the Convention[20] and Quebec law.[21]

2.2 – Differences in Application

[17] That being said, and as noted earlier, there are a number of dissimilarities in comparing the Convention and Quebec law, in terms of application; some of these have no effect, while others are more problematic. The dissimilarities that do not create problems include, first, the vocabulary and definitions used in the two sets of rules. The LFIT Act uses, in several places, terms that are unique to that Act and that are not necessarily found in other legislation. In fact, that Act seems to be designed to be very much “in sync” with the vocabulary used in either library science or computer science. For example, the expression “technology-based document” used in the LFIT Act refers to “information technology”, while the Convention instead uses the term “electronic document”. The LFIT Act takes the approach that “electronic document” refers too narrowly to one particular technology and excludes others; on the other hand, the term “electronic” is widely understood and generally has a generic meaning that does not generally create problems. In any event, we believe that there are no notable differences between article 4(b)[22] and (c)[23] of the Convention, which define “electronic communication” and “data message”, respectively, and section 1, paragraphs 2[24] and 4,[25] of the LFIT Act, which use the term “technology-based document”. In both cases, both instruments attempt to be as inclusive as possible and a distinction is generally made between the document and its medium.[26] In addition to the term “automated message system”, defined in article 4(g) of the Convention, which we will consider later,[27] the other definitions are not likely to present any problems in terms of incompatibility with the Quebec law.

[18] Another distinction is that the scope of the Convention is necessarily different from the scope of the LFIT Act; in fact, it is considerably narrower. The Convention provides for relatively major and uniform exclusions, as set out in article 2. First, the Convention does not apply to (1) personal and national transactions; (2) a series of other matters expressly listed in article 2 relating to business transactions, and notably terms of payment; and (3) bearer documents such as bills of lading. These three exclusions are in fact significant, and relate to matters in respect of which it is more difficult to achieve an international consensus. The Convention has thus omitted subjects (such as consumer contracts) in respect of which it was foreseeable that differences of opinion would emerge. The LFIT Act, on the other hand, applies to all documents and there are very rare matters that are exempted. For example, the LFIT Act amended the Consumer Protection Act to provide that certain formal contracts specifically identified in the Act, and not all consumer contracts, may be made only in the form of a paper contract.[28] Apart from these rare exceptions, the LFIT Act is intended to apply in all circumstances. Second, the Convention applies only to (1) contracts, and specifically (2) contracts that are international and (3) do not involve the substantive rules of the law of contracts.[29] These two limits (exceptions and kinds of contracts) mean that its scope is relatively circumscribed. In fact, this difference in scope should not present any difficulties since accession to the Convention by Canada would not operate to sweep away the LFIT Act, which applies much more broadly. Given that the scope of the Convention is much narrower, the risk of conflict is even lower. The more problematic dissimilarities relate incidently to the original and, most importantly, the writing, as we shall see in greater detail.

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