Written By Sebastien Gittens, Stephen Burns and HC Lee
Legislative changes have resulted in the Alberta Electronic Transactions Act (ETA) now applying to various records often relied upon by employers, landlords, tenants and others. As any record to which the ETA applies cannot be denied legal effect (i.e., solely by reason that it is in electronic form), these changes will provide additional assurance to those dealing with electronic versions of the aforementioned records in Alberta.
The ETA was enacted nearly 20 years ago to remove "barriers to electronic commerce by ensuring that electronic records and transactions have the same validity and enforceability as traditional paper based transactions."1 For example, the ETA can provide for "functional equivalency" of electronic documents and signatures, giving them the same legal force as their paper and ink counterparts.2 In addition, the ETA allows contracts to be formed by electronic means, for example, by "touching or clicking on an appropriate icon or other place on a computer screen."3
However, the ETA does not apply uniformly to all records. In particular, the ETA carves out various records from its application, including:
- certain wills and estates documents (e.g., wills, enduring powers of attorney and personal directives);
- certain real estate documents (e.g., transfers of land);
- guarantees under the Alberta Guarantees Acknowledgement Act; and
- negotiable instruments.4
Prior to February 12, 2020, the Alberta Electronic Transactions Act General Regulations also prescribed various exceptions, including:5
- information or records arising from, related to or connected with an employee-employer relationship;
- the issuance of orders, certificates or warrants under the Public Health Act or Mental Health Act; and
- service of notices, orders or documents under the Residential Tenancies Act.6
Amendments to the regulations have resulted in the deletion of the exceptions therein. A summary of the effects of such changes are described below:
The Alberta Employment Standards Code requires employers to keep an up-to-date record of an extensive list of prescribed information for each employee (such as name, address, date of birth, hours of work, wage rate, deductions, related permits and overtime agreements).7 This information must be retained for at least three years from the date that each record is made.8
With the recent changes to the regulations, employers can now maintain employment records electronically. This means that employers no longer need to maintain a bulky paper file for each employee. That said, employers should be wary of risks associated with digital storage of documents containing personal information of employees. For instance, data loss, corruption or breaches can result in sanctions under the Alberta Personal Information Protection Act.
In addition, the ETA now recognizes that employment agreements can be formed over electronic communications. For example, the acceptance of an offer or any other matter that is material to the formation of a contract can be expressed by "touching or clicking on appropriate icon or other place on a computer screen" unless parties agree otherwise.9 Issues relating to the validity of employment agreements formed through these sorts of click-wrap agreements may arise in the near future.
B. Healthcare Providers
The ETA now applies to various sections of the Alberta Public Health Act and the Alberta Mental Health Act, which include the following effects:
- physicians, community health nurses, midwifes and nurse practitioners can use electronic means to notify, in prescribed form, a medical official of health of a recalcitrant patient that is infected with a disease prescribed in the regulations under the Public Health Act;10
- a medical officer of health can use electronic means to issue an order to apprehend a person who fails to undergo treatment or comply with conditions of release from a medical facility under the Public Health Act;11
- physicians can use electronic means to issue or cancel an isolation order against a person infected with an organism that produces a disease prescribed in the regulations under the Public Health Act;12
- physicians can use electronic means to issue a certificate with respect to a person who, in the physician's opinion, meets the requirements for admission into a medical facility for a mental disorder under the Mental Health Act;13 and
- a court can use electronic means to issue a warrant for the apprehension of a person who meets the requirements for admission into a medical facility for a mental disorder under the Mental Health Act.14
C. Landlords and Tenants
Landlords and tenants can now use electronic means to serve notices, orders and other documents under section 57 of the Alberta Residential Tenancies Act (RTA),15 if the parties consent. This includes service of termination notices, notices of increase in rent, notices to vacate and eviction orders.
The RTA already contemplates electronic service under section 57, which states that service must normally be effected personally or by registered mail.16 If a landlord or tenant is unable to effect service personally by registered mail, they may send the notice, order or document "by electronic means that will result in a printed copy of the notice, order or document being received by an electronic device that is situated in the residential premises or at the landlord's address, as the case may be."17
Since the ETA now applies to section 57 of the RTA, it appears that landlords and tenants no longer need to attempt personal service or service by registered mail before using electronic means, provided both sides consent.
When seeking to rely on the ETA, there are various requirements that need to be met depending on the nature of the record. For example, a legal requirement that a person provide a record in writing is satisfied if the record is: (i) accessible by the other person (so as to be usable for subsequent reference); and (ii) capable of being retained by the other person.
It should also be noted that other statutory requirements should be considered. For example, the Alberta Evidence Act (AEA) contains provisions relating to electronic evidence. For example, under section 41.3 of the AEA, one who seeks to introduce an electronic record has the burden of proving its "authenticity by evidence capable of supporting a finding that the electronic evidence is what the person claims it to be."
While the recent changes to the scope of the ETA provides increased comfort in connection with the use of electronic documents in Alberta in various circumstances, organizations should be wary of the increased risks associated with electronic storage and transmission of records, especially if they contain personal or otherwise sensitive information.
In addition, organizations should seek consent in writing with respect to use of electronic documents to reduce risks regarding the documents' validity and regarding compliance with legal requirements on data storage and management.
The Bennett Jones Privacy & Data Protection group is available to assist you to navigate the changes to the ETA and answer any questions you might have about your organization’s privacy obligations.
1 Government of Alberta, "Electronic Transactions Act," online: <https://open.alberta.ca/publications/e05p5>.
2 Electronic Transactions Act, SA 2001, c E-5.5, ss 10-18.
3 Ibid, s 27.
4 Ibid, s 7.
5 Electronic Transactions Act General Regulation, Alta Reg 34/2003.
6 Ibid, s 2 (now repealed under Electronic Transactions Act General Amendment Regulation, AR 18/2020, s 2).
7 Employment Standards Code, RSA 2000, c E-9, s 14.
8 Ibid, s 15.
9 Electronic Transactions Act, s 27.
10 Public Health Act, RSA 2000, c P-37, s 39.
11 Ibid, s 43(2).
12 Ibid, ss 44-46.
13 Mental Health Act, RSA 2000, c M-13, s 2.
14 Ibid, s 10(5).
15 Residential Tenancies Act, SA 2004, c R-17.1, s 57(1); Electronic Transactions Act General Regulation, s 2 (now repealed).
16 Residential Tenancies act, s 57(1).
17 Ibid, s 57(5).