Electronic signatures

No. It is not mandatory to use a system accredited by the OACIQ. However, it is strongly recommended that you do business with one of the suppliers accredited by the Organization. The use of non-accredited systems is discouraged, as they expose you and your clients to several risks, including:

• the signature affixed electronically on a document could be considered invalid, which would put the agreement in jeopardy;
• the personal information of the parties to a transaction might not be protected;
• you might not being able to recover certain data from the service provider;
• the OACIQ might not be able to intervene should a problem occur, since it would not have an agreement with the provider.

The broker who chooses to use a system other than those accredited by the OACIQ should discuss this with his agency executive officer. He must also make sure that the system he chooses meets all the technical specifications required, which are available on oaciq.com. Keep in mind that electronic signature systems from outside Québec may not comply with applicable Québec laws.

When a broker wishes to use an electronic signature system for his work, he must first seek the authorization of his agency executive officer. Since the AEO is responsible for maintaining the records, books and registers, he may set certain guidelines regarding the use of electronic signatures by brokers acting on behalf of the agency under his responsibility. The broker must always follow the procedures of the agency for which he is authorized to act.

Any type of document may be signed electronically, including brokerage contracts. A brokerage contract bearing electronic signatures is considered an original, and therefore a duplicate. In an electronic signature system, once all parties have signed, they each receive their copy of the contract. This also provides the broker with evidence that the seller has received a duplicate of the brokerage contract, which proves that he is bound by his contract obligations.

There is no legal obligation to do so for a signature to be valid, but it is good practice, among other things to avoid having a presumed signatory dispute the fact that he is the author of the signature.

Yes. However, the copy bearing the electronic signature must be kept electronically. The agency’s record will therefore contain two separate documents which together constitute the contract, i.e. the document received electronically bearing the electronic signature, and another copy of the document bearing the electronic signature and the handwritten signature of the other party.

This being said, an exclusive brokerage contract for the sale or purchase of a chiefly residential immovable containing less than 5 dwellings or of a fraction of a chiefly residential immovable that is the subject of an agreement or a declaration referred to in articles 1009 to 1109 of the Civil Code of Québec cannot be signed using a mixed process. Section 25 of the Real Estate Brokerage Act stipulates that the broker must give a duplicate of the contract to the client, and that the latter is bound to perform his obligations only once he is in possession of a duplicate of the contract. A contract signed using a mixed process cannot be considered a duplicate. Rather, it is a copy.

In addition, to preserve the concept of contract duplicate, any annex forming an integral part thereof must abide by the same rules as the main form.

Nevertheless, even though article 25 of the REBA does not apply to commercial brokerage, the remittance of a contract duplicate remains mandatory due to the Signatures clause in the OACIQ's recommended brokerage contract forms, which indicates that the parties acknowledge having received a duplicate of the contract. Note that this rule does not apply to in-house forms that do not specify that the parties have received a contract duplicate.

YES. Although in some cases all the signatories receive a signed copy simultaneously (which is an exception), the broker is still required to notify the buyer immediately of the refusal or acceptance of his promise to purchase, and to keep written proof of such notification in his record. For further details, read the article Promise to purchase: signing the acknowledgement of receipt.

By following the rules described in the article entitled Identity verification best practices.

With any document bearing one or more electronic signatures, it is important to attach the authentication certificate, which describes the complete process used. This certificate must be kept by the agency of the broker who initiated the electronic signature process. The agency does not have an obligation to forward it to the agency representing the other party to the transaction. Only a copy of the original document (i.e. not having undergone any medium change) bearing the electronic signature(s) needs to be sent and is acceptable for record maintenance.

No. Unlike a hand-signed document that can be digitized and still remain an original as long as the medium change is properly documented, the same cannot be done with an electronically signed form, as once this form is printed, it is no longer possible to validate the authenticity of the signatures.

Each agency must make sure that all documents forwarded are done so electronically, in order to begin electronic conservation of electronically signed documents and their authentication certificates, if applicable.

The agency necessarily prints the documents it receives to maintain its records and registers. Paper records must contain notes on the location of these electronic documents, which may not be destroyed before the expiration of the six-year period provided under the Act. In this context, caution must be exercised and adequate backups made in order to protect these files and identify them clearly.

The dates and times appearing on the documents or the authentication certificate can be set based on Greenwich Mean Time (GMT) or on another time zone. Note that local time in Québec is established either as Eastern Standard Time (EST) or Eastern Daylight Time (EDT), depending on the time of year.

Verifying the time used by the electronic signature system could require additional management time in order, for example, to make sure that the acceptance period of a promise to purchase or counter-proposal is respected and make it legally binding between the parties. Thus a promise to purchase that is accepted by a seller at 10:05 EDT on October 2, 2013 could read 14:05 GMT, October 2, 2013 on the promise to purchase or the authentication certificate. To make sure that the local date and time of signing appear on an electronically signed document or form, we recommend that you visit the Greenwich Mean Time website at: www.greenwichmeantime.com.

No. The purpose of the witness’s signature is to attest to the signatory’s identity. A broker cannot act as a witness to his client’s signature in this context, since he is not in the presence of his client when the form is signed. Furthermore, the electronic signature software certifies the signatory’s identity by way of the authentication certificate. The broker’s signature is therefore not required.