Tag: digital evidence
Can a text message be tantamount to a signed acknowledgment?
Yes, according to the recent Ontario Divisional Court decision in 1475182 Ontario Inc. o/a Edges Contracting v. Ghotbi.
There, the court considered the application of certain provisions of the Limitations Act, 2002. Essentially, under the Act, a claim must be started within two years of the act or omission giving rise to the claim. However, under s. 13 of the Act, the date for a claim for payment can be extended where the debtor acknowledges the debt to a creditor IN WRITING and SIGNED BY THE PERSON MAKING IT OR THE PERSON’S AGENT.
In Edges, a contractor sued for money owing for renovation work. The last payment under the contract was made in March 2016. The claim was not commenced until May, 2018, and the defendant argued that the claim was statute-barred. However, the defendant texted the contractor in June, 2016, saying “The balance will be paid once everything is completed as per your agreement. No payment will be made until everything is clear. I’m going to hire a third-party inspector and their fees will be deducted from your payments too.”
The contractor argued that this was an acknowledgment of the debt, and therefore extended the limitation period. The defendant countered by arguing that the text was not signed, and therefore did not have that effect. The Small Claims Court judge and the Divisional Court disagreed.
On the issue of whether the text satisfied the statutory requirement that the acknowledgement be “signed”, the Divisional Court noted that there was no issue as to whether the text was authentic, or sent by the defendant. The Divisional Court held:
- The requirement of a signature is grounded in concerns of authenticity. As there was no issue with respect to the authenticity of the text, the underlying purpose of the signature requirement was satisfied.
- In any event, the Divisional Court concluded that the text was “signed”, albeit not in the traditional sense. The text was sent from the defendant’s cell phone. The phone had a unique phone number, and “other unique identifiers associated with … [the defendant’s] phone, including, without limitation, an International Mobile Equipment Identifier (IMEI) number. These unique identifiers provide, in effect, a digital signature on every message sent by the user of that particular device.”
The Divisional Court observed that “The world is changing. Everyone knows that. We live in a digital world now, much more than was the case when the Act came into force in 2002. It is incumbent upon the court to consider not just traditional means of affixing one’s signature to a document, but other, more modern means, including digital signatures.”
The world is indeed changing. Text with caution.
Have a great weekend.
Text messaging is an increasingly popular method of communication.
Even though a text may take less than 30-seconds to write and they are often intended to be causal communications as opposed to letters or e-mails, they are still a record of our written communications with one and other.
In a recent family law matter from Saskatchewan, the court was asked to consider the admissibility of a mother’s text messages with her child’s father in the context of a dispute about their parenting schedule.
The texts were downloaded from the mother’s phone to her computer using a computer application called “Decipher Text”. The computer application then generated a print out of the parties text messages which “appears as many single spaced tightly grouped lines with a code at the beginning of each line and what appears to be text message communications placed at the end of the code” (at para. 7). Since the document is a printout of an electronic record, the court considered whether the electronic record meets the requirements of the Saskatchewan Evidence Act. Ultimately, the printout was found to be inadmissible because the mother failed to introduce affidavit evidence about how the printout accurately and completely depicts the parties’ communications as well as how “Decipher Text” actually works.
The crux of the problem was best described at paragraph 19:
Here the link between the smart phone text message and the form of evidence filed to prove that text message – the Decipher Text printout – is lacking. The intermediary here is a printout that is not a screen shot but is instead a computer rendering of some sort, filtered and formatted through the Decipher Text computer program/application. This intermediary program, or application, is not explained in any of the affidavits nor so commonly understood presently that it is possible to take judicial notice of what happens between the electronic record, here being the text messages, reaching the smart phone and that subsequently being converted into the printout attached. Thus a gap exists regarding authentication here.
In Ontario, section 34.1 of the Evidence Act, RSO 1990, c E. 23 governs the admissibility of electronic records in so far as it relates to the issue of authentication and best evidence rule. Like Saskatchewan, section 34.1(4) provides that the person seeking to introduce an electronic record has the burden of proving its authenticity.
Sylvestre v. Sylvestre, 2018 SKQB 105 (link here), is well worth the read for any litigator in today’s day and age. It is also well worth having in your arsenal of case law regarding how judicial notice may be given to other ways of presenting electronic evidence such as the screenshot.
Thanks for reading!