This was a construction dispute. Edges, the plaintiff, succeeded in its Small Claims Court action to collect about $25,000 remaining on a contract for over $200,000 for the defendant dentist. Dr. Ghotbi felt there had been deficiencies in the contract performance and was withholding payment pending satisfaction of those deficiencies. By text message, Edges’s principal agreed to examine the deficiencies if Dr. Ghotbi presented him with the final payment. In reply text message, Dr. Ghotbi said he would only pay once the contract was completed (impliedly, based on his view and that of an independent inspector he was going to hire.)
The Small Claims Court action had been started more than two years after the last payment, when Dr. Ghotbi said he was not going to pay more. But the action did start within two years of that follow-up text exchange.
Section 13 of the Ontario Limitations Act, 2002 restarts the two-year normal limitation period for civil actions if there is an acknowledgement of the debt. But subsection 13(10) require the acknowledgement to be “in writing and signed by the person making it or the person’s agent. ” So the question here was whether a text message acknowledging the debt was valid because a text message is not signed in the traditional way. In fact, it’s not signed at all.
The Superior Court judge (sitting alone as the Divisional Court for a Small Claims Court appeal) concluded that a text message is “signed” for purposes of the limitations act where its authenticity is admitted, because the person using it uses a unique cell phone number with other
unique identifiers:
“[47] On the facts of the case at bar, Dr. Ghotbi’s texts were obviously not “signed” in the traditional sense. But s. 13(10) does not prescribe any particular type of signature.
[48] 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.
[49] In this instance, there is no question about the authenticity of the text messages. There is no question that Dr. Ghotbi was the author of the June 2, 2016 texts in issue. From that perspective, the underlying purpose of s. 13(10) has been satisfied.
[50] I would also find that the express requirement of a signature is met in this case. Dr. Ghotbi used his cellular telephone to send and receive texts with Mr. Lupo. Dr. Ghotbi, like all other cellular telephone users, has a unique phone number linked with his phone. In fact, there will undoubtedly be other unique identifiers associated with Dr. Ghotbi’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. Again, there is no dispute that the user of the device was Dr. Ghotbi and that he sent the texts in issue. In my view, that digital signature is sufficient to meet the requirements of s. 13(10) of the Act.”
There isn’t any special reason to restrict this reasoning to the Limitations Act, 2002. It might have broader application for other contexts. For example, what a text message satisfy the requirements of the Electronic Commerce Act, 2000, S.O. 2000, c. 17?