This is one of those posts that will probably be of interest to very few people.  Many have probably not thought of the issue of electronic signatures (or e-signatures) for filings with Corporations Canada.  Others may have thought about it and assumed that it has been permissible for a long period of time.   Luckily, I have a strong team of smart people – because I was not really thinking about this issue.

Over the years and up until a few days ago, we have been in contact with Corporations Canada to inquire about the acceptability of electronic signatures for CNCA documents (such as Articles of Incorporation, Articles of Amendment, Consent to Use Name, etc.) and we were advised in the past that Corporations Canada’s policy is that they do not accept documents containing e-signatures.

We were advised that, in situations where e-signatures are indistinguishable from ink signatures, there will be no issue but Corporations Canada may reject documents that are clearly signed with e-signatures such as DocuSign, etc.  Our firm recently submitted a Consent to Use Name signed by a client with DocuSign and Corporations Canada did, indeed, reject the document.

With the COVID-19 crisis and the new reality in which we find ourselves, we have had a further conversations with Corporations Canada and it appears that they have adjusted their position to be more flexible.

Corporations Canada recognizes, for example, that various governing bodies of lawyers and paralegals have loosened requirements for commissioning documents in the last few weeks.

For example, with a statutory declaration – which must be signed in the presence of an individual authorized to administer oaths – Corporations Canada seems to accept that if it is done within the parameters provided by the Barreau du Québec or the Law Society of Ontario, etc. relating to distance swearing, then that would be acceptable to Corporations Canada.

Most importantly, with respect to Articles and whether they can be digitally signed, it seems the position of Corporations Canada has become more flexible: Articles can be digitally signed if the requirements of section 270 of the CNCA (or section 252.7 of the CBCA) are satisfied, namely:

  • The signature resulting from the technology or process must be unique to the user;
  • The technology or process is used by a user to incorporate, add or associate that person’s signature to the electronic document; and
  • The technology or process makes it possible to identify the user.

Corporations Canada is taking the position that it is up to the corporation to determine whether the technology or process used to sign the Articles meets these requirements, and Corporations Canada cannot provide advice regarding issues such as choice of software or other technology.

It appears that Corporations Canada will not be the gatekeeper on this issue, and if the non-profit or charity is confident that the requirements of section 270 of the CNCA have been met then Corporations Canada will accept those documents.

In certain circumstances this will be very helpful to assist people who are physically distancing and may not have access to all the latest technology.

We are also very relieved that Corporations Canada’s Online Filing Centre is working so well and we are at times seeing documents returned to us in minutes or hours. This is very impressive. For anyone contemplating setting up a new non-profit corporation in Canada, the CNCA and Corporations Canada’s system provides a really good platform for non-profits and charities.