On November 15, 2023, the Yukon enacted the Fiduciaries Access to Digital Assets Act, SY 2023, c 15, becoming the fourth Canadian jurisdiction – and the first territory – to enact legislation based on the Uniform Law Conference of Canada’s Uniform Access to Digital Assets by a Fiduciary Act.

First approved in 2016, the Uniform Act fills a gap in the legislation in most Canadian jurisdictions by authorizing a variety of types of fiduciaries, including the personal representative of an estate, to gain access to the digital assets of a deceased or incapacitated person. As noted in the Working Group’s Final Report for the Uniform Act, the Act “confirms that the usual powers of fiduciaries extend to digital assets, with whatever practical implications that extension may have.”

To date, legislation inspired by the Uniform Act has been enacted in only four jurisdictions, including the Yukon. Saskatchewan was the first to adopt legislation inspired by the Uniform Act by enacting the Fiduciaries Access to Digital Information Act, SS 2020, c 6 in 2020. The second jurisdiction to follow suit was Prince Edward Island, with the Access Digital Assets Act, RSPEI 1988, c. A-1-1. Then on December 16, 2022, New Brunswick passed the Fiduciaries Access to Digital Assets Act, SNB 2022, c 59.

Not only is such legislation beneficial for the individual whose interests are represented by the fiduciary, in terms of granting the fiduciary with access to that individual’s digital assets – it is also beneficial for service providers by ensuring they will not be subject to liability for complying with the legislation and also clarifying when a service agreement may limit a fiduciary’s access to digital assets. For the purposes of the Yukon’s Act, digital assets include any record of information stored on a digital platform, including documents, emails, blogs, photos, audio and video files, e-books and records related to bank accounts, as noted in the online announcement issued when the Act received royal assent.

The legislation in the Yukon is somewhat distinct from the Uniform Act in giving the Commissioner in Executive Council additional regulatory powers over the circumstances under which digital assets may be accessed. The Commissioner in Executive Council for the territory may prescribe additional documents for fiduciaries to provide to the custodians of digital assets in order to comply with the legislation. Regulations may also be created “respecting any matter that the Commissioner in Executive Council considers necessary or advisable to carry out the intent and purposes of this Act”: see section 10. As of this time, however, it appears that the Commissioner in Executive Council has not created any regulations.

New Brunswick’s Act is also similar in that it allows additional document requirements to be imposed through regulations: see sections 8(1)(b)(ii) and 11(b) of New Brunswick’s Act.

Ontario currently does not have any law which expressly permits fiduciaries, including estate trustees, to obtain access to digital assets, nor does it appear that the current provincial government is planning to propose such legislation. Until the law is updated in this area, it is advisable to meet with a lawyer to address estate planning issues inherent to the posthumous or inter vivos distribution of digital assets. On a similar note, it is also a good idea for fiduciaries, such as estate trustees, guardians or attorneys, to consult with counsel to learn what steps can be taken to obtain access to the digital assets of a deceased person or a donee.

Thank you for reading, and have a great day!
Ian