Article courtesy of Danielle Maksimow (Norton Rose Fulbright)
Contract Acceptance by way of Emoji “👍” In South West Terminal Ltd. v Achter Land & Cattle Ltd., 2023 SKKB 116
South West Terminal Ltd. (“SWT”) brought a claim in the Saskatchewan Court of Kings Bench against Achter Land & Cattle Ltd. (“Achter Ltd.”) for breach of contract.
SWT had previously purchased grain from Achter Ltd. through various contracts since 2012. In March 2021, SWT’s grain buyer, Kent Mickleborough, texted Bob and Chris Achter, expressing an interest in buying flax. This was followed up by telephone calls between Mickleborough and each of the Achters. Mickleborough then drafted a contract for Achter Ltd. to sell SWT 86 metric tonnes of flax for $17 per bushel, with a delivery period listed as “Nov.” Mickleborough applied his ink signature to the contract, and then took a photo of the contract using his cell phone. He texted a photo of the contract to Chris, along with a text message: “Please confirm flax contract.” Chris texted back with a thumbs-up emoji, “👍”. Achter Ltd. did not deliver the 87 metric tonnes of flax to SWT in November 2021.
SWT argued that the “👍” signified acceptance and confirmation of the flax contract. Achter Ltd. argued that the “👍” acknowledged receipt but not acceptance of the contract.
In its deliberation, the Court relied on the test set out in the Supreme Court of Canada’s decision in Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v Aga, 2021 SCC 22 (Aga), which considered whether a reasonable bystander would have believed the parties entered into a contract. The Court applied the test in consideration of the Parties past contractual dealings, which were often established over text message, for context. Generally, SWT would text a photo of a contract and request confirmation of the contract. Chris Achter would respond with “looks good”, “ok” or “yup”. Following these previous exchanges, the Parties would satisfy their respective contractual obligations. Using the test from Aga, the Court found that a reasonable bystander would have assumed the “👍” signified acceptance of the contract, which was consistent with the Parties’ past dealings.
The Court also considered The Sale of Goods Act (Saskatchewan) (the SGA), which stipulates that a contract for the sale of goods valued in excess of $50 must be in writing and signed to be enforceable. The Court determined that the “👍” sent from Chris Achter’s cell phone satisfied the two purposes of a signature under the SGA – it identified the signatory and signified acceptance.
Further, pursuant to s. 18 of the Electronic Information and Documents Act (Saskatchewan) (the EIDA), the court found that a “👍” constituted an “action in electronic form”, which may be used to express acceptance, similar to clicking “I accept” in response to online forms containing terms and conditions. The electronic transactions act or electronic commerce act of British Columbia, Alberta and Ontario contain a similar provision to the EIDA in respect of “actions in electronic form”.
Judicial consideration and interpretation of emojis are not novel issues before Canadian courts. The Court in South West Terminals noted that it “cannot (nor should it) attempt to stem the tide of technology and common usage. The new reality of Canadian society and courts will have to be ready to meet the new challenges that may arise from the usage of emojis and the like.” In British Columbia, courts have considered (i) the use of emojis in contract interpretation and in discerning the intentions of the contracting parties (see Blom v Blom, 2021 BCSC 18), and (ii) as evidence that has been given weight by the court in a decision over alleged breaches on the basis of conflicts of interest (see Redmond v Wiebe, 2022 BCCA 244).
