BILL 70

Electronic Transactions Act

Chapter Outline

Definitions and interpretation 1

electronic - électronique

electronic signature - signature électronique

information - information

legal requirement - exigence légale

Purpose of Act 2

Act does not require use or acceptance of electronic information 3

Application 4

Crown bound 5

Legal effect 6

Information in writing 7

Forms 8

Originals 9

Signatures 10

Retention of information 11

Provision of written information 12

Mail 13

Registered Mail 14

Effective electronic means 15

Time of sending and receipt 16

Electronic agents 17

Human error 18

Regulations 19

Commencement 20

 

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

Definitions and interpretation

1(1) In this Act

"electronic" includes digital and optical; («électronique»)

"electronic signature" means electronic information that a person has created or adopted in order to sign a document and that is in, attached to or associated with the document; («signature électronique»)

"information" includes a document; («information»)

"legal requirement" means a requirement of an Act of New Brunswick, of a regulation or other subordinate legislation under an Act of New Brunswick, or of the common law. («exigence légale»)

1(2) The provisions of this Act relating to legal requirements apply whether the law

(a) creates an obligation, or

(b) provides consequences for doing something or for not doing something.

Purpose of Act

2 The purpose of this Act is to facilitate the use and acceptance of electronic information by persons who wish to do so.

Act does not require use or acceptance of electronic information

3 Nothing in this Act requires a person to use or accept electronic information.

Application

4(1) Where there is a conflict between this Act and any other Act that expressly authorizes, prohibits or regulates the use of electronic information, the other Act prevails.

4(2) This Act does not apply to any Act, legal requirement, information, transaction or other matter that is excluded by regulation.

Crown bound

5 This Act binds the Crown.

Legal effect

6 Subject to section 3, information shall not be denied legal effect or enforceability solely on the ground that the information is electronic.

Information in writing

7 A legal requirement that information be in writing is satisfied by electronic information that is accessible so as to be usable for subsequent reference.

Forms

8 A legal requirement that information be in or on a particular form is satisfied by electronic information that is in or on the same or substantially the same form.

Originals

9(1) A legal requirement that information be an original is satisfied by electronic information if there exists a reliable assurance as to the integrity of that information from the time it was created.

9(2) For the purpose of subsection (1),

(a) the criterion for assessing integrity is whether the information has remained complete and unaltered, apart from the introduction of any changes that arise in the normal course of communication, storage and display, and

(b) the standard of reliability required shall be assessed in the light of the purpose for which the information was created and in the light of all the circumstances.

9(3) Information remains an original for the purposes of this section even though it has been converted from non-electronic to electronic format, or from electronic to non-electronic format, if it continues to meet the requirements of subsections (1) and (2).

Signatures

10(1) A legal requirement for the signature of a person is satisfied by an electronic signature.

10(2) Without limiting the definition "electronic signature" in section 1, an electronic signature may be

(a) an electronic representation of the manual signature of the person signing the document, or

(b) electronic information by which the person signing the document

(i) provides his or her name, and

(ii) indicates clearly that the name is being provided as his or her signature to the document.

Retention of information

11(1) A legal requirement that information be retained is satisfied by retaining that information electronically if

(a) the information is retained in the format in which it was made, sent or received, or in a format that does not alter the contents of the information,

(b) the information will be accessible so as to be usable for subsequent reference by any person who is entitled to have access to it or who is authorized to require its production, and

(c) where the information was sent or received, supplementary information, if any, that identifies the origin and destination of the information to be retained and the date and time when it was sent or received, is also retained.

11(2) Where the information to be retained was initially electronic, it may also be retained in a non-electronic format that meets the requirements of subsection (1).

Provision of written information

12(1) A legal requirement that written information be provided to a person is satisfied by the provision of electronic information that is accessible by that person and is capable of being retained by that person so as to be usable for subsequent reference.

12(2) A legal requirement that more than one copy of written information be provided to a person at the same time is satisfied by the provision of a single electronic version of that information.

12(3) For the purposes of subsection (1), electronic information shall be deemed not to be capable of being retained if the person providing the information inhibits the printing or storage of the information by the person to whom it is to be provided.

Mail

13 A legal requirement that information be delivered by mail is satisfied by delivering the information electronically.

Registered Mail

14(1) A legal requirement that information be delivered by registered mail is satisfied if

(a) the sender delivers the information electronically with a request for receipt to be acknowledged, and

(b) the recipient acknowledges receipt.

14(2) If receipt is acknowledged electronically, the acknowledgment of receipt must include the electronic signature of the recipient.

Effective electronic means

15(1) In this section

"responsible authority" means

(a) in relation to the discharge of a statutory power, duty, function or responsibility of a public officer or statutory body, that public officer or statutory body, and

(b) in relation to any matter arising under an enactment the administration of which is expressly conferred on a Minister, including a matter referred to in paragraph (a), that Minister.

15(2) The matters referred to in subsection (1) include

(a) matters in which the responsible authority deals with other persons, and

(b) matters in which other persons deal among themselves.

15(3) In relation to any matter referred to in subsection (1), a responsible authority may determine

(a) the form, the nature, the technological attributes or any other characteristic of the electronic information that may be used for the purpose of that matter, and

(b) the manner in which and the terms and conditions on which that information may be used.

15(4) The use of electronic information as determined under subsection (3) is effective as a means of proceeding electronically in relation to the matter in question.

15(5) Nothing in this section prevents the responsible authority or any other person from accepting other means of proceeding electronically in relation to the matter in question, but the fact that other persons have done so in dealings among themselves does not require the responsible authority also to accept what they have done.

Time of sending and receipt

16(1) Unless the sender and the addressee agree otherwise, electronic information is sent

(a) when it enters an information system outside the control of the sender, or

(b) if the sender and the addressee are in the same information system, when the sender takes the appropriate steps to make the information accessible to the addressee.

16(2) Electronic information is presumed to be received

(a) when it enters an information system designated or used by the addressee for the purpose of receiving information of the type sent and it is capable of being retrieved and processed by the addressee, or

(b) if the information enters some other information system and it is capable of being retrieved and processed by the addressee, when the addressee becomes aware that the information is in that other system.

16(3) Nothing in this section shall be interpreted as determining the place from which electronic information is sent nor the place at which it is received.

Electronic agents

17(1) In this section and section 18

"electronic agent" means a computer program or any electronic means used to initiate an action or to respond to an electronic document or action, in whole or in part, without review by an individual at the time of the response or action.

17(2) A contract or other transaction may be entered into by the interaction of an electronic agent and an individual or by the interaction of electronic agents.

Human error

18(1) A contract or other transaction entered into by the interaction of an individual and the electronic agent of another person may be cancelled by the individual if

(a) the individual made a material error in the information provided to the electronic agent, and

(b) the electronic agent did not provide the individual with an opportunity to prevent or correct the error.

18(2) An individual who cancels a contract or other transaction under this section

(a) must notify the other person of the error promptly when the individual becomes aware of it,

(b) must take reasonable steps, including steps that conform to the other person's instructions, to return the consideration, if any, received as a result of the error, or to destroy the consideration if instructed to do so, and

(c) must not have used or received any material benefit or value from the consideration, if any, received from the other person.

18(3) The other person must also return, or destroy if instructed to do so, any consideration received from the individual.

18(4) The individual's right of cancellation under this section does not restrict or replace any other remedy or recourse that the individual may have in the circumstances.

18(5) If the individual who made the error was acting on behalf of another person, that latter person may cancel the transaction in accordance with this section.

Regulations

19(1) The Lieutenant-Governor in Council may make regulations

(a) defining any word or expression used in but not defined in this Act;

(b) respecting the form, the nature, the technological attributes or any other characteristic of the electronic information that may or shall be used for the purpose of any provision of this Act or in relation to any matter;

(c) respecting the manner in which and the terms and conditions on which electronic information referred to in paragraph (b) may or shall be used;

(d) respecting consent to electronic transactions and the manner in which consent is given and expressed;

(e) respecting electronic payments;

(f) excluding any Act, legal requirement, information, transaction or other matter from the application of this Act or of any of its provisions;

(g) respecting consumer contracts or other consumer transactions that are entered into electronically, in whole or in part;

(h) for carrying out the purpose and intent of this Act.

19(2) Regulations under this section may be general or specific, both as to the persons to whom and the subject-matter to which they relate.

19(3) Regulations under paragraph (1)(g) may include provisions relating to the substantive, formal and procedural requirements of a consumer contract or other consumer transaction, to its enforceability and to the remedies that may arise in relation to it.

Commencement

20 This Act or any provision of it comes into force on a day or days to be fixed by proclamation.