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'Thumbs up' emoji ruling a cautionary tale

Evan Saunders
'Thumbs up' emoji ruling a cautionary tale

The digital thumbs up has been used since the early days of the Internet to signal a variety of sentiments, from expressing how you are feeling to responding to a question.

But thanks to a recent Saskatchewan court ruling, a thumbs-up emoji can now also constitute a legally binding signature on a work contract.

On June 8, Justice T.J. Keene on the Court of King’s Bench in Swift Current, Sask. ruled a texted thumbs up emoji in response to a flax delivery contract constituted an electronic signature and that failure to deliver the product constituted a breach of contract.

Chris Atchison, president of the British Columbia Construction Association (BCCA), said members of the construction sector need to keep the ruling in their thoughts as they go about daily business.

“This ruling serves as a cautionary tale for those of us in the construction industry,” he said in a statement.

“Your actions and words, written or spoken and now even an emoji, may have unintended legal consequences.”

The organization writes all business parties must strive to maintain professional, clear and direct communications.

South West Terminal Ltd. (SWT) sought a judgment against Achter Land & Cattle Ltd. for the former’s failure to deliver 87 metric tonnes of flax in November 2021. SWT sued for breach of contract while Achter denied having ever agreed to the contract.

Achter was ordered to pay SWT $82,200.21 for damages plus interest along with a fixed cost of $500 for the notice of objection application.

Achter argued “any contract is unenforceable because there was no note or memorandum of the contract made or signed by the parties.”

According to the agreed statement of facts between the parties, farm marketing representative with SWT, Kent Mickleborough, was in talks to buy flax from Bob and Chris Achter. After multiple texts and phone calls with both Achters, Mickleborough drew up a contract and sent it to Chris Achter.

Mickleborough asked Chris to “please confirm the contract” via text message. Chris responded with a thumbs up emoji, according to the written decision.

Keene writes “the signature requirement was met by the ‘thumbs up emoji’” as it originated from Chris Achter’s unique cellphone, which was an undisputed statement of fact between both parties.

Keene also pointed out the two companies had engaged in many grain contracts in the past and the method of communication at-hand was standard between them.

For previous contracts, Chris had responded with “ok,” “yup” and “looks good.”

“The parties clearly understood these curt words were meant to be confirmation of the contract and not a mere acknowledgement of the receipt of the contract by Chris. There can be no other logical or creditable explanation,” Keene writes.

“The proof is in the pudding.”

Chris Achter rejected SWT’s proposal that a thumbs up emoji is a positive affirmation. According to the decision, Achter took the position that he is generally unaware of the meaning of the emoji and did not know what exactly he was trying to communicate when he sent it.

Keene writes the emoji satisfies the requirements for electronic signatures under s. 6 of the Sale of Goods Act, which states “the signature does not need to be a signature in the strict sense of the word ― so long as it shows that it is the defendant who is agreeing to the terms.”

Keene writes counsel for Achter said allowing the emoji to signify identity would usher in a new age of court cases regarding the interpretation of all the emojis in common use. Keene agreed.

“This case is novel (at least in Saskatchewan) but nevertheless this court cannot (nor should it) attempt to stem the tide of technology and common usage,” Keene writes.

“This appears to be the new reality in Canadian society and courts will have to be ready to meet the new challenges that may arise from the use of emojis and the like.”

The BCCA states the construction industry has been increasingly relying on text messages for communication regarding important and material project matters that can have contractual and financial imputations due to the time sensitive nature of the sector.

“Proceed with caution,” said Atchison.

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