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Electronic Notifications and Service in Canada

Many elements must be taken in consideration in order to ensure that the technological means you choose to send electronic notifications and/or services comply with the requirements of certain regulations.

Todoc’s team has studied Canadian law pertaining to electronic notifications and service. You will discover that using Todoc will allow you to meet multiple requirements.

Canada

FEDERAL COURTS

Regulation : Federal Courts Rules (SOR/98-106)

Documents to produce :
Transmission slip and Affidavit of Service (FORM 146A)

Consent necessary :
YES. Written consent according to Form 141A

Entry into force :
Upon delivery if sent before 5 p.m. (Art. 143(1))

Particular procedure or exception :
Originating document must be served (Art. 138)

SUPREME COURT OF CANADA

Regulation :
Rules of the Supreme Court of Canada (SOR/2002-156)
Rule 20 – Service of Documents

Documents to produce :
Transmission slip and Affidavit of Service (Form 20)

Consent necessary :
NO. Except in the case of documents that need to be attached, unless the party to whom the documents are served agrees to their service by this very means. 20 (1) d.1

Entry into force :
Upon delivery if sent before 5 p.m. (Art. 20(4))

Québec

CIVIL PROCEEDINGS

Regulation : Code of Civil Procedure (C-25.01, Art. 133-134)

Documents to produce :
Transmission slip (Art. 134)

Consent necessary :
NO. Except in the case of the non-represented party (Art. 133)

Entry into force :
Upon delivery if sent before 5 p.m. (Art. 111)

Particular procedure or exception :
Documents must be served according to the provisions set forth in the Code (Art. 110)

CRIMINAL PROCEEDINGS

Regulation :
Code of Penal Procedure (C-25.1)

Particular procedure or exception :
Electronic notification must be authorized by a judge (Art. 24)

Ontario

SUPERIOR COURT AND COURT OF APPEAL

Regulation : Code of Civil Procedure (RRO 1990, Reg. 194)

Documents to produce:
Proof of Service (Art. 16.09) and Affidavit of Service (Form 16B)

Consent necessary:
YES. (Art. 16.05f)

Entry into force:
Upon delivery if sent before 4 p.m. (Art. 3.01 (2))

Particular procedure or exception :
Document is to be served personally (Art. 16.02)
Served party must be represented by a lawyer (Art. 16.05)

Alberta

COURT OF QUEEN’S BENCH OF ALBERTA & COURT OF APPEAL OF ALBERTA

Regulation : Alberta Rules of Court (Alta Reg 124/2010)

Documents to produce :
Confirmation of transmission and Affidavit of Service (art. 11.21(2))

Consent necessary :
NO. The recipient must have specifically provided an address for delivery of the notification (Art. 11.21(1))

Entry into force :
Upon delivery

Particular procedure or exception :
Commencement Document (art. 11.21(1))

British-Columbia

SUPREME COURT

Regulation : Supreme Court Civil Rules (BC Reg 168/2009)

Documents to produce :
Written acknowledgment of receipt and Affidavit of personal service according to Form 16 (Rule 4-6 (d))

Consent necessary :
NO. The recipient must have provided an email address for service (Rule 4-2-(2)(d))

Entry into force :
Upon delivery if sent before 4 p.m. (Rule 4-2-(6))

Particular procedure or exception :
Document is to be served personally (Personal Service) (Rule 4-3)

Other jurisdictions: Please refer to the current laws in force in your province.

The Canadian legislative context governing the transmission of documents by technological means

The Canadian legislative context governing the transmission of documents

In Canada, September 1999, a conference regarding the standardization of Canadian law was held and it then led to the adoption of the Uniform Electronic Act. Every Canadian province, except for Quebec, adopted the uniform rules set forth by the model law.

In respect to the Canadian federal government, the Personal Information Protection and Electronic Documents Act was adopted.

In Québec, An Act to Establish a Legal Framework for Information Technology (AELFIT) aims to support electronic document management.

The AELFIT has been in force since October 2001. It has been amended in 2011 and 2012.

The lccjti.ca website (in French only) is a mine of interesting information that details the Act. The latter is surely a reference to consult.

With the entry into force of the new Code of Civil Procedure, the AELFIT has become essential when promoting the use of technology within the legal field in Quebec.

The object of this Act is to ensure:

1- the legal security of documentary communications between persons, associations, partnerships and the State, regardless of the medium used;

2- the coherence of legal rules and their application to documentary communications using media based on information technology, whether electronic, magnetic, optical, wireless or other, or based on a combination of technologies;

3- the functional equivalence and legal value of documents, regardless of the medium used, and the interchangeability of media and technologies;

4- the linking of a person, an association, a partnership or the State with a technology-based document, by any means allowing them to be linked, such as a signature, or any means allowing them to be identified and, if need be, located, such as certification; and

5- concerted action for the harmonization of the technical systems, norms and standards involved in communications by means of technology-based documents and interoperability between different media and information technologies.

Learn more about the AELFIT

See below for articles relating to the AELFIT that touch upon electronic notification:

Article 2
Except where a document is required by law to be in a specific medium or technology, any medium or technology may be used, provided the medium or technology chosen is in compliance with legal rules, in particular those contained in the Civil Code.

Hence, media used to inscribe documentary information are interchangeable and a requirement that a document be in writing does not entail the use of a specific medium or technology.

Article 4
A technology-based document, even when the information it contains is fragmented and dispersed in one or more media at one or more locations, is considered to form a whole if its logical structuring elements allow the fragments to be connected, directly or by reference, and if such elements ensure both the integrity of each fragment and the integrity of the document reconstituted as it existed prior to its fragmentation and dispersal.

Conversely, separate technology-based documents, even when combined into a single document for transmission or retention purposes, do not lose their distinct nature, if logical structuring elements ensure both the integrity of the combined document and the integrity of each separate reconstituted document.

Article 5
The legal value of a document, particularly its capacity to produce legal effects and its admissibility as evidence, is neither increased nor diminished solely because of the medium or technology chosen.

A document whose integrity is ensured has the same legal value whether it is a paper document or a document in any other medium, insofar as, in the case of a technology-based document, it otherwise complies with the legal rules applicable to paper documents.

Article 6
The integrity of a document is ensured if it is possible to verify that the information it contains has not been altered and has been maintained in its entirety, and that the medium used provides stability and the required perennity to the information.

The integrity of a document must be maintained throughout its life cycle, from creation, in the course of transfer, consultation and transmission, during retention and until archiving or destruction.

To assess the integrity of a document, particular account must be taken of the security measures applied to protect the document throughout its life cycle.

Article 7
It is not necessary to prove that the medium of a document or that the processes, systems or technology used to communicate by means of a document ensure its integrity, unless the person contesting the admission of the document establishes, upon a preponderance of evidence, that the integrity of the document has been affected.

Article 9
Two or more documents in different media have the same legal value if they contain the same information, if the integrity of each document is ensured and if each document complies with the applicable legal rules. One document may be substituted for another and the documents may be used simultaneously or in alternation. In addition, all such documents may be used for the same purposes.

If a document is lost, another document may serve to reconstitute it.

Article 10
The sole fact that documents containing the same information but in different media show differences in the way in which the information is stored or presented, or contain different information, whether visible or hidden, relating to the medium used or to security, shall not be considered as affecting the integrity of the documents.

Similarly, differences relating to page numbering, the tangible or intangible nature of pages, format, recto or verso presentation, total or partial accessibility, and sequential or thematic information retrieval possibilities shall not be considered as affecting the integrity of the documents.

Article 11
In the event of a divergence between documents in different media or based on different technologies that purport to contain the same information, the document containing information that can be verified as being unaltered and maintained in its entirety shall prevail unless evidence to the contrary is adduced.

Article 12
A technology-based document may fulfil the functions of an original. To that end, the integrity of the document must be ensured and, where the desired function is to establish

1- that the document is the source document from which copies are made, the components of the source document must be retained so that they may subsequently be used as a reference;

2- that the document is unique, its components or its medium must be structured by a process that makes it possible to verify that the document is unique, in particular through the inclusion of an exclusive or distinctive component or the exclusion of any form of reproduction;

3- that the document is the first form of a document linked to a person, its components or its medium must be structured by a process that makes it possible to verify that the document is unique, to identify the person with whom the document is linked and to maintain the link throughout the life cycle of the document.

For the purposes of subparagraphs 2 and 3 of the first paragraph, the processes must be based on technical norms and standards approved by a recognized body referred to in section 68.

Article 13
Where the function of affixing a seal, signet, press, stamp or other instrument is :

1- to preserve the integrity of a document or authenticate the document as an original, the purpose may be achieved, in the case of a technology-based document, by means of any process appropriate to the medium used;

2- to identify a person, an association, a partnership or the State, the purpose may be achieved, in the case of a technology-based document, according to the rules provided in subdivision 1 of Division II of Chapter III;

3- to protect the confidentiality of a document, the purpose may be achieved in the case of a technology-based document, according to the rules provided in section 34.

RETENTION OF DOCUMENTS

Article 19
Every person must, during the period a document is required to be retained, ensure that its integrity is maintained and see to it that equipment is available to make the document accessible and intelligible and usable for the purposes for which it is intended.

Article 22
A service provider, acting as an intermediary, that provides document storage services on a communication network is not responsible for the activities engaged in by a service user with the use of documents stored by the service user or at the service user's request.

However, the service provider may incur responsibility, particularly if, upon becoming aware that the documents are being used for an illicit activity, or of circumstances that make such a use apparent, the service provider does not act promptly to block access to the documents or otherwise prevent the pursuit of the activity.

Similarly, an intermediary that provides technology-based documentary referral services, such as an index, hyperlinks, directories or search tools, is not responsible for activities engaged in by a user of such services. However, the service provider may incur responsibility, particularly if, upon becoming aware that the services are being used for an illicit activity, the service provider does not act promptly to cease providing services to the persons known by the service provider to be engaging in such an activity.

Article 26
Anyone who places a technology-based document in the custody of a service provider is required to inform the service provider beforehand as to the privacy protection required by the document according to the confidentiality of the information it contains, and as to the persons who are authorized to access the document.

During the period the document is in the custody of the service provider, the service provider is required to see to it that the agreed technological means are in place to ensure its security and maintain its integrity and, if applicable, protect its confidentiality and prevent accessing by unauthorized persons. Similarly, the service provider must ensure compliance with any other obligation provided for by law as regards the retention of the document.

Article 27
A service provider, acting as an intermediary, that provides communication network services or who stores or transmits technology-based documents on a communication network is not required to monitor the information communicated on the network or contained in the documents or to identify circumstances indicating that the documents are used for illicit activities.

However, the service provider may not take measures to prevent the person responsible for access to documents from exercising his or her functions, in particular as regards confidentiality, or to prevent the competent authorities from exercising their functions, in accordance with the applicable legislative provisions, as regards public security or the prevention, detection, proof and prosecution of offences.

TRANSMISSION OF DOCUMENTS

Article 28
A document may be transmitted, sent or forwarded by any means appropriate to the medium, unless the exclusive use of a specific means of transmission is required by law.

Where the law requires the use of mail, the requirement may be met by means of the technology appropriate to the medium of the document. Similarly, where the law requires the use of registered mail, the requirement may be met, in the case of a technology-based document, by means of an acknowledgement of receipt in the appropriate medium signed by the recipient, or by any other agreed method.

Where the law requires the transmission or reception of a document at a specific address, the address shall comprise, in the case of a technology-based document, an identifier specific to the location where the recipient may receive communication of such document.

Article 30
For the technology-based document received to have the same value as the document transmitted, the means of transmission must allow the integrity of both documents to be preserved. Documentation establishing the ability of a means of transmission to preserve the integrity of both documents must be available for production as evidence.

The sole fact that a document is fragmented, compressed or stored during its transmission for a limited time to improve the efficiency of the transmission does not entail the conclusion that the its integrity has been affected.

Article 31
A technology-based document is presumed transmitted, sent or forwarded where the action required to send it to the active address of the recipient has been accomplished by or on the instructions of the sender, and the transmission cannot be stopped or, although it can be stopped, is not stopped by or on the instructions of the sender.

A technology-based document is presumed received or delivered where it becomes accessible at the address indicated by the recipient as the address where the recipient accepts the receipt of documents from the sender, or at the address that the recipient publicly represents as the address where the recipient accepts the receipt of documents, provided the address is active at the time of sending. The document received is presumed intelligible, unless notice to the contrary is sent to the sender as soon as the document is accessed.

The time of sending or of receipt of a document may be established by producing a transmission slip or an acknowledgement of receipt or the information kept with the document providing it guarantees the date, hour, minute and second of sending or receipt and indicates the source and destination of the document, or by any other agreed method that provides the same guarantees.

Article 32
Where the law requires that two or more copies of a document be transmitted, sent, forwarded, remitted or delivered to one and the same recipient, the requirement may be met, in respect of a technology-based document transmittable on a communication network, by the transmission of a single copy.

Article 34
Where the information contained in a document is declared by law to be confidential, confidentiality must be protected by means appropriate to the mode of transmission, including on a communication network.

Documentation explaining the agreed mode of transmission, including the means used to protect the confidentiality of the transmitted document, must be available for production as evidence.

Article 35
A party that offers a product or service by means of a pre-programmed document must, on pain of non-enforceability of the communication or cancellation of the transaction, see to it that the document provides instructions that allow users to promptly advise the party of any errors or contains means that allow users to avoid or correct errors. Similarly, users must be provided instructions or means to avoid receiving unwanted products or services because of an ordering error, or instructions for the return or destruction of unwanted products.

Article 36
A service provider, acting as an intermediary, that provides communication network services exclusively for the transmission of technology-based documents is not responsible for acts of service users performed with the use of the documents transmitted or stored during the normal course of the transmission for the time required for the efficiency of the transmission.

However, the service provider may incur responsibility, particularly if the service provider otherwise participates in acts performed by service users

1- by being the sender of a document;

2- by selecting or altering the information in a document;

3- by selecting or altering the information in a document;

4- by selecting or altering the information in a document;

Article 37
A service provider, acting as an intermediary, which, as part of transmission services provided via a communication network, maintains technology-based documents furnished by clients on that network for the sole purpose of ensuring the efficiency of their subsequent transmission to persons having a right to access the information, is not responsible for acts of service users performed with the use of those documents.

However, the service provider may incur responsibility, particularly if the service provider otherwise participates in acts performed by service users

1- as specified in the second paragraph of section 36;

2- by not complying with the conditions for access to a document;

3- by preventing the verification of who has accessed a document;

4- by failing to withdraw a document from the network or to block access to the document after becoming aware that the document has been withdrawn from its initial position on the network, that persons having the right to access the document are unable to do so or that a competent authority has ordered that the document be withdrawn from the network or that access to the document be blocked.

CHOOSING A LINKING PROCESS

Article 38
The link between a person and a technology-based document, or the link between such a document and an association, a partnership or the State, may be established by any process or combination of processes, to the extent that it allows :

1- the identity of the person or the identification of the association, partnership or the State and, where applicable, their location, to be confirmed, and allows their link with the document to be confirmed; and

2- the document to be identified and, if need be, allows its origin and destination at any given time to be determined.

Article 39
The link between a person and a document, whatever the medium used, may be established by means of the person's signature. A person's signature may be affixed to the document by means of any process that meets the requirements of article 2827 of the Civil Code.

A person's signature affixed to a technology-based document may be set up against that person if the integrity of the document is ensured and the link between the signature and the document was established at the time of signing and has since been maintained.

Lexicon

Notification (Québec)

According to article 109 of the CCP, the purpose of notification is to bring a document, whether an originating application or any other pleading or document, to the attention of the persons concerned. 110. Notification may be made by any appropriate method that provides the notifier with proof that the document was delivered, sent or published. Such methods include notification by court bailiff, by mail, by delivery, by technological means and by public notice.

Service (Québec)

According to article 110 of the CCP, If the law so requires, notification is made by a court bailiff, in which case it is called service.

Technology-based Document

Information inscribed on a medium constitutes a document. The information is delimited and structured, according to the medium used, by tangible or logical features and is intelligible in the form of words, sounds or images. The information may be rendered using any type of writing, including a system of symbols that may be transcribed into words, sounds or images or another system of symbols.

For the purposes of this Act, a database whose structuring elements allow the creation of documents by delimiting and structuring the information contained in the database is considered to be a document.

A record may comprise one or more documents.

In this Act, a technology-based document is a document in any medium based on any information technology referred to in paragraph 2 of section 1.

Medium

The material which serves as the basis for information. The medium, drawing on information technology, is a concrete element that receives, maintains and restores the information in an electronic system. It can be magnetic, optical, or in the form of any memory for safely storing data. For example, the information contained in a document can be extended by a hard disk, floppy disk or CD. The law attaches legal value to documents, notwithstanding the nature of the medium on which the information is stored and structured upon. http://lccjti.ca/definition/support/ (Definition available only in French)

Transmission

Transmission does not have rigorous framework in terms of privacy. However, An Act to Establish a Legal Framework for Information Technology refers to the concept in a much more explicit manner. Transmitting a document means delivering it from point A to point B. A document’s transmission is therefore considered a technical operation that can possibly entail communication. http://lccjti.ca/definition/transmission-2/ (Definition available only in French)

Other Definitions (Available only in French)

The information provided on this page is obtained from sources Avancie considers reliable; however Avancie does not in any whatsoever way guarantee the quality, compliance or accuracy, nor does it guarantee the completeness of such information.

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