Different stories: e-commerce law at work

In my previous article, I provided an overview of those provisions of the Uniform Electronic Commerce Act (UECA) that specifically relate to government. This article discusses provincial and territorial implementation of the UECA or, more precisely, of some of the principles embodied in it.

To date, 11 Canadian provincial and territorial jurisdictions (Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Ontario, Prince Edward Island, Quebec, Saskatchewan and the Yukon) have passed legislation of broad application designed to facilitate electronic commerce.

Readers will recall that the UECA contains a number of specific provisions relating to government, such as:

– The definition of “government” typically extends to government departments and agencies, and, optionally, local governments.

– Governments are authorized to use electronic communications for all their purposes.

– Governments may provide for electronic forms.

– Governments may accept and make payments electronically.

– Government consent is required before a government can be compelled to perform certain functions electronically.

Provincial/territorial electronic commerce laws typically adhere to these principles, but in some cases, government authority to engage in electronic transactions may be broader or more restrictive than the UECA provides.

For example, the Alberta statute Electronic Transactions Act, S.A. 2001, c. E-6.5 contains a broader definition of “government” than that contained in the UECA. In addition to including government departments, designated agencies, and local governments, the Alberta legislation also applies to health care bodies and educational bodies, as well as a wide array of provincial executive and legislative offices and office holders. However, the Alberta courts, as well as the offices of the Speaker and Members of the Legislative Assembly of the Province, are specifically excluded. In the end, the Alberta legislation applies to a broader portion of the public sector than specified by the UECA.

By contrast, the British Columbia statute Electronic Transactions Act, S.B.C. 2001, c. 10 contains no definition of government and does not include a number of the references to government contained in the UECA. However, this legislation provides for electronic payments to be made to or by government, and authorizes the government to use electronic means to create, store, transfer, distribute, publish or otherwise deal with records or information.

The New Brunswick legislation Electronic Transactions Act, S.N.B. 2001, c. E-5.5 confers a very broad discretion regarding government use of electronic means upon applicable “responsible authorities” which include public officers or statutory bodies responsible for the discharge of statutory powers, duties, functions or responsibilities, as well as Ministers of the Provincial Government.

The provisions relating to the government use of electronic means contained in the Saskatchewan legislation Electronic Information and Documents Act, 2000, S.S. 2000, c. E-7.22 are more complex than those of the UECA, but the net effect is essentially the same.

The Quebec statute An act to establish a legal framework for information technology, S.Q., 2001, c. 32 is not drafted in the same style as the UECA, but it does address many of the same principles covered by the UECA, as well as a number of other matters.

In addition to the specific variations among different statutes relating to government use of electronic means, there are other differences among the more general provisions of such laws that can apply to transactions involving governments. Other provincial/territorial laws can also come into play. Accordingly, those who wish to interact electronically with public institutions in more than one province or territory should be aware of jurisdictionally based differences in the requirements for such interactions.

My next article will address the federal response to the need for legal certainty in electronic activity.

For the full text of the UECA see Uniform Law conference of Canada, Uniform Electronic Commerce Act, visit www.law.ualberta.ca/alri/ulc/current/euecafin.htm.

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Jim Love, Chief Content Officer, IT World Canada

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