Electronic Communications Convention - Impact on Quebec 2008


[1] There are statutes in Alberta, Electronic Transaction Act, http://www.iijcan.org/ab/laws/sta/e-5.5/20060115/whole.html; British Columbia, Electronic Transaction Act, http://www.qp.gov.bc.ca/statreg/stat/E/01010_01.htm; Prince Edward Island, Electronic Commerce Act, http://www.iijcan.org/pe/laws/sta/e-4.1/20060115/whole.html; Manitoba, Electronic Commerce and Information Act, http://www.iijcan.org/mb/legis/loi/e-55/20060115/tout.html; New Brunswick, Electronic Transactions Act, http://www.canlii.org/nb/legis/loi/e-5.5/20050801/tout.html; Nova Scotia, Electronic Commerce Act, http://www.canlii.org/ns/laws/sta/2000c.26/20060115/whole.html; Ontario, Electronic Commerce Act, 2000, http://www.canlii.org/on/legis/loi/2000c.17/20050801/tout.html; Saskatchewan, Electronic Information and Document Act, http://www.iijcan.org/sk/laws/sta/e-7.22/20060115/whole.html.; Newfoundland, Electronic Commerce Act, http://www.iijcan.org/nl/laws/sta/e-5.2/20051121/whole.html and Yukon, Electronic Commerce Act, http://www.canlii.org/yk/legis/loi/66/20041124/tout.html.

[2] See, inter alia, Vincent GAUTRAIS, Le contrat électronique international, Bruxelles, Bruylant Academia / Bruylant, 2002, 430 pp.

[3] Articles 2837 to 2840 CCQ.

[4] Articles 2841 to 2842 CCQ.

[5] Inter alia, by establishing, as in the Convention, definitions of writing, signature and original that are separate from paper medium.

[6] The LFIT Act provides, for example, for the minimum legal requirements that a document must meet for purposes of retaining, transmitting, transferring and accessing a document.

[7] The Act regulates and applies stringent rules to the use of “sensitive” methods of identification such as biometrics. As well, unless otherwise provided by law, the LFIT Act prohibits any person, whether natural or legal and whether public or private, from imposing one technology rather than another on an individual.

[8] Recommendation by UNCITRAL on the Legal Value of Computer Records (1985), available at http://www.uncitral.org/pdf/english/texts/electcom/computerrecords-e.pdf.

[9] The text is available at http://www.uncitral.org/pdf/english/texts/electcom/ml-elecsig-e.pdf.

[10] See, for example, BARREAU DU QUÉBEC, “Mémoire sur la Loi sur la normalisation juridique des nouvelles technologies de l’information” (2000), http://www.barreau.qc.ca/fr/positions/opinions/memoires/2000/normalisationtic.pdf.

[11] See, inter alia, Vincent GAUTRAIS, Afin d’y voir clair – Guide relatif à la gestion des documents technologiques, Fondation du Barreau du Québec, 2005, p. 6.

[12] Annex to the Convention, whereas 4: “Convinced that the adoption of uniform rules to remove obstacles to the use of electronic communications in international contracts, including obstacles that might result from the operation of existing international trade law instruments, would enhance legal certainty and commercial predictability for international contracts and help States gain access to modern trade routes”.

[13] Section 1, para. 1, of the LFIT Act provides: “The object of this Act is to ensure 1) the legal security of documentary communications between persons, associations, partnerships and the State, regardless of the medium used”.

[14] Section 5, para. 1, of the LFIT Act provides: “The legal value of a document, particularly its capacity to produce legal effects and its admissibility as evidence, is neither increased nor diminished solely because of the medium or technology chosen.”

[15] See, inter alia, article 11, which provides: “A contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form. It may be proved by any means, including witnesses.”

[16] Annex to the Convention, whereas 5: “Being of the opinion that uniform rules should respect the freedom of parties to choose appropriate media and technologies, taking account of the principles of technological neutrality and functional equivalence, to the extent that the means chosen by the parties comply with the purpose of the relevant rules of law”.

[17] Article 8, paragraph 2: “Nothing in this Convention requires a party to use or accept electronic communications, but a party’s agreement to do so may be inferred from the party’s conduct.”

[18] “2.  Except where a document is required by law to be in a specific medium or technology, any medium or technology may be used, provided the medium or technology chosen is in compliance with legal rules, in particular those contained in the Civil Code.”

[19] “29.  A person may not be required to acquire a specific medium or technology to transmit or receive a document, unless such requirement is expressly provided by law or by an agreement.

Similarly, no person may be required to receive a document in a medium other than paper, or by means of technology that is not at the person's disposal.

A product or service, or information on a product or service, that is available in more than one medium, may be obtained in any such medium, at the option of the recipient of the product or service.”

[20] See, inter alia, whereas 5 in the Annex, supra.

[21] Functional equivalence is referred to, for example, in section 1(3), which provides: “The object of this Act is to ensure: … 3) the functional equivalence and legal value of documents, regardless of the medium used, and the interchangeability of media and technologies”. Technological neutrality, as noted earlier, is referred to in the C.C.Q., in Division 6 of Book 7, Title 2, Chapter 1, entitled “Media for writings and technological neutrality”.

[22] “‘Electronic communication’ means any communication that the parties make by means of data messages; …”

[23] “‘Data message’ means information generated, sent, received or stored by electronic, magnetic, optical or similar means, including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy; …”

[24] “The object of this Act is to ensure … the coherence of legal rules and their application to documentary communications using media based on information technology, whether electronic, magnetic, optical, wireless or other, or based on a combination of technologies; …”

[25] “A technology-based document, even when the information it contains is fragmented and dispersed in one or more media at one or more locations, is considered to form a whole if its logical structuring elements allow the fragments to be connected, directly or by reference, and if such elements ensure both the integrity of each fragment and the integrity of the document reconstituted as it existed prior to its fragmentation and dispersal.”

[26] This distinction is evident in, for example, the definition of “information system” in the Convention (article 4(f)) and section 3 of the LFIT Act which provides, inter alia: “[i]nformation inscribed on a medium constitutes a document.”

[27] Infra, Part 1, Section 2, paragraphs 47 to 51.

[28] Section 25 of the Consumer Protection Act provides: “The contract must be drawn up clearly and legibly, and at least in duplicate and in paper form.”

[29] As articles 7, 13 and 14(2) of the Convention, inter alia, explain.

[30] The concept of “subsequent reference” is found only in section 12 of the LFIT Act in relation to the original.

[31] See the references to all these provincial statutes in note 1.

[32] UNCITRAL Model Law on Electronic Commerce with Guide to Enactment, 1999, page 35, paragraph 48,  available at http://www.uncitral.org/pdf/english/texts/electcom/05-89450_Ebook.pdf. UNCITRAL Convention on the Use of Electronic Communications in International Contracts, Text and Explanatary Note, 2007, p. 50, paragraph 144.

[33] Id., paragraph 49.

[34] This is apparent from, inter alia, the fact that the amendments made by the LFIT Act to the C.C.Q. were incorporated in the Book On Evidence. As well, article 2838 C.C.Q. refers expressly to that one function.

[35] For example, Australia, Electronic Transactions Act, section 9, available at http://www.austlii.edu.au/au/legis/cth/consol_act/eta1999256/. See also the list of some 20 countries that have adopted the 1996 Model Law. Nonetheless, we would note that France, one of those countries, has since then provided a definition of writing based on the criterion of integrity.

[36] The US E-Sign Act, available at http://caselaw.lp.findlaw.com/casecode/uscodes/15/chapters/96/subchapters/i/sections/section_7001.html, refers in section 7001 to the concept of “electronic record” in very similar terms.

[37] Loi n° 2000-230 du 13 mars 2000 portant adaptation du droit de la preuve aux technologies de l'information et relative à la signature électronique, article 1, amending article 1316-1 of the French Civil Code, provides: “[TRANSLATION] A writing in electronic form is admissible in evidence on the same basis as a writing on paper medium, provided that the person by whom it is issued can be duly identified and that it is established and retained under conditions such as to guarantee its integrity.”

[38] Avis 11-201 relatif à la transmission de documents par voie électronique, available at http://egc.lautorite.qc.ca/userfiles/File/reglementation/valeurs-mobilieres/Normes/A-XXXIII-03b.pdf, achieved a compromise by not opting for either of the solutions, but combining them in article 4.2: “[TRANSLATION] (1) forms for power of attorney, powers of attorney and voting instructions in electronic format (including electronic format using a telephone) will meet the requirements of recording in writing if the format used (a) guarantees the integrity of the information contained in the forms for power of attorney and powers of attorney, and (b) enables the recipient to retain the information for future consultation.” (Emphases added)

[39] The LFIT Act simply changes “on a writing” to “to a writing”, the first being properly thought to be too closely associated with paper medium.

[40] See, for example, Bolduc v. Talbot (2001) (Court of Québec), available at http://www.canlii.org/qc/jug/qccq/2001/2001qccq1827.html; Armand v. Checotel Finance, [1985] C.S. 1154.

[41] Section 12 LFIT Act (emphases added).

[42] In a very similar manner, section 6, para. 2 of the LFIT Act provides that “[t]he integrity of a document must be maintained throughout its life cycle, from creation, in the course of transfer, consultation and transmission, during retention and until archiving or destruction”, while article 9(5) of the Convention provides that “[t]he criteria for assessing integrity shall be whether the information has remained complete and unaltered, apart from the addition of any endorsement and any change that arises in the normal course of communication, storage and display”.

[43] “2. This Convention does not apply to bills of exchange, promissory notes, consignment notes, bills of lading, warehouse receipts or any transferable document or instrument that entitles the bearer or beneficiary to claim the delivery of goods or the payment of a sum of money.”

[44] “A proposal to conclude a contract made through one or more electronic communications which is not addressed to one or more specific parties, but is generally accessible to parties making use of information systems, including proposals that make use of interactive applications for the placement of orders through such information systems, is to be considered as an invitation to make offers, unless it clearly indicates the intention of the party making the proposal to be bound in case of acceptance.”

[45] Article 1388 C.C.Q.

[46] Vienna Convention on Contracts for the International Sale of Goods, articles 1, 10, 12.

[47] Article 1387 C.C.Q.

[48] “14(1). Where a natural person makes an input error in an electronic communication exchanged with the automated message system of another party and the automated message system does not provide the person with an opportunity to correct the error, that person, or the party on whose behalf that person was acting, has the right to withdraw the portion of the electronic communication in which the input error was made if:

(a) The person, or the party on whose behalf that person was acting, notifies the other party of the error as soon as possible after having learned of the error and indicates that he or she made an error in the electronic communication; and

(b) The person, or the party on whose behalf that person was acting, has not used or received any material benefit or value from the goods or services, if any, received from the other party.

2. Nothing in this article affects the application of any rule of law that may govern the consequences of any error other than as provided for in paragraph 1.”

[49] “35.  A party that offers a product or service by means of a pre-programmed document must, on pain of non-enforceability of the communication or cancellation of the transaction, see to it that the document provides instructions that allow users to promptly advise the party of any errors or contains means that allow users to avoid or correct errors. Similarly, users must be provided instructions or means to avoid receiving unwanted products or services because of an ordering error, or instructions for the return or destruction of unwanted products.”

[50] Éric A. CAPRIOLI, Droit international de l’économie numérique, 2nd ed. (Paris: Litec, 2007), pp. 91 et seq.

[51] UNCITRAL, United Nations Convention on the Use of Electronic Communications in International Contracts, Text and Explanatory Note (2007), p. 51, para. 145.

[52] Supra, in Part 1, paragraph 25.

[53] Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, June 10, 1958), article 2.

[54] Convention on the Limitation Period in the International Sale of Goods (New York, June 14, 1974) and Protocol thereto (Vienna, April 11, 1980), article 1(g).

[55] United Nations Convention on Independent Guarantees and Stand-by Letters of Credit (New York, December 11, 1995), article 7(2).

[56] United Nations Convention on Contracts for the International Sale of Goods (Vienna, April 11, 1980); United Nations Convention on the Liability of Operators of Transport Terminals in International Trade (Vienna, April 19, 1991).

[57] United Nations Convention on the Assignment of Receivables in International Trade (New York, December 12, 2001), article 5(c).

[58] UNCITRAL Model Law on International Commercial Arbitration (amended by the United Nations Commission on International Trade Law on July 7, 2006), article 7.

[59] Even though some doubt remains about section 5, which uses the term “legal value”. On the other hand, article 2838 C.C.Q., which reaffirms the previous one, is unequivocal.

[60] Vincent GAUTRAIS, “Le contrat électronique au regard de la Loi relative à l’encadrement des technologies de l’information”, in Vincent GAUTRAIS, ed., Le droit du commerce électronique (Montreal: Thémis, 2002), pp. 3-56, at pp. 24 et seq. The author quotes, inter alia, Léo DUCHARME, L’administration de la preuve, Collection Bleue, 2nd ed. (Montreal: Wilson & Lafleur, 1995), p. 195: [translation] “For a written instrument to be proof of its content, its authenticity must be established.”

[61] UNCITRAL, United Nations Convention on the Use of Electronic Communications in International Contracts, Text and Explanatory Note (2007), p. 51, para. 145.

[62] Section 5, para. 4 of the LFIT Act: “Where the law requires the use of a document, the requirement may be met by a technology-based document whose integrity is ensured.”

[63] The term “document” is defined in section 71 of the LFIT Act as including the concept of “writing”: “71. The concept of document, as used in this Act, is applicable to all documents referred to in legislative texts whether by the term ‘document’ or by terms such as act, deed, record, annals, schedule, directory, order, order in council, ticket, directory, licence, bulletin, notebook, map, catalogue, certificate, charter, cheque, statement of offence, decree, leaflet, drawing, diagram, writing, electrocardiogram, audio, video or electronic recording, bill, sheet, film, form, graph, guide, illustration, printed matter, newspaper, book, booklet, computer program, manuscript, model, microfiche, microfilm, note, notice, pamphlet, parchment, papers, photograph, minute, program, prospectus, report, offence report, manual and debt security or title of indebtedness.” (Emphasis added)

[64] UNCITRAL, Tenth Report on Reservations to Treaties by Alain PELLET, A/CN.4/558, available at http://untreaty.un.org/ilc/documentation/english/a_cn4_558.pdf, at paragraph 27, explaining that there are relatively few examples of strict prohibitions against reservations. Contra: UNCITRAL, United Nations Convention on the Use of Electronic Communications in International Contracts, Text and Explanatory Note (2007), p. 97, para. 314.

[65] See, inter alia, the comments made in document A/CN.9/571 - Report of the Working Group on Electronic Commerce on the work of its forty‑fourth session (Vienna, October 11‑22, 2004), at http://daccessdds.un.org/doc/UNDOC/GEN/V04/589/92/PDF/V0458992.pdf?OpenElement, para. 30, pp. 9-10. Contra: UNCITRAL, United Nations Convention on the Use of Electronic Communications in International Contracts, Text and Explanatory Note (2007), p. 97, para. 314.

[66] UNCITRAL, United Nations Convention on the Use of Electronic Communications in International Contracts, Text and Explanatory Note (2007), p. 86, paras. 271 et seq.

[67] UNCITRAL, United Nations Convention on the Use of Electronic Communications in International Contracts, Text and Explanatory Note (2007), p. 90, paras. 284 et seq.

[68] In accordance with the comments published on the UNCITRAL site, available at http://www.uncitral.org/uncitral/en/uncitral_texts/electronic_commerce/2005Convention_status.html.

[69] Éric A. CAPRIOLI, Droit international de l’économie numérique, 2nd ed. (Paris: Litec, 2007), p. 94.

[70] Vincent GAUTRAIS, Le contrat électronique international (Brussels: Bruylant Academia / Bruylant, 2002), 430 p.

[71] UNCITRAL Model Law on International Commercial Arbitration (amended by the United Nations Commission on International Trade Law on July 7, 2006), article 7; Recommendation regarding the interpretation of article II, paragraph 2, and article VII, paragraph1, of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done in New York, 10 June 1958, adopted by the United Nations Commission on International Trade Law on 7 July 2006 at its thirty‑ninth session.

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