General Counsel, Corporate Secretary and Vice President, Policy
MSN - 0016
Jan 23, 2003
MFDA Staff Notices are intended to assist Members and their Approved Persons in the interpretation, application of and compliance with requirements under MFDA By-laws and Rules. Notices make reference to these requirements and set out MFDA staff's interpretation of how to comply with these requirements. Notices may also include best practices or guidance.
The MFDA will now permit the use of electronic or digital signatures where a signature is required with respect to agreements, contracts or transactions with and between the Member and its clients, Approved Persons, other Members, the MFDA and any other person or company where a signature is required to be executed. Members must comply with the requirements for electronic signatures under applicable provincial electronic commerce legislation.
The general requirements for electronic signatures, which are similar among jurisdictions, are summarized below. However, Members are advised to refer to the specific provincial legislation applicable in order to ensure compliance with the requirements. Where no electronic commerce legislation exists in a particular jurisdiction, electronic signatures would not be valid in that jurisdiction. A list containing the names of the provincial electronic commerce legislation and their respective status is attached as Appendix “A” to this Notice.
A list of MFDA Rules, Policies and Forms that contain a requirement for signatures is attached as Appendix “B” to this Notice. This list is intended for illustrative purposes only and is by no means exhaustive.
Members should refer to Member Regulation Notice MR-0015 Electronic Delivery of Documents in conjunction with the use of electronic signatures.
Electronic commerce legislation in force in a number of jurisdictions clarifies that electronic signatures are legally valid in those jurisdictions.
The commonly accepted legal definition of “executed” and “signature” all suggest that there is more than one method of signing (and hence executing) a document.
Most provincial legislation clarifies that an electronic signature does not have to look like a “physical” signature in order to be valid and binding. For example, the signature can be a code, sound or symbol of any kind and could be part of or separate from the document it signs, as long as the association with the document is clear.
The use by the Member of electronic signatures is contingent upon the Member’s technological capabilities. Technological issues will require, among other things, that the capabilities of the technology guarantee non-repudiation, which entails the inability of the signer to repudiate his or her signature on or association with the document. However, the provincial legislation does not specify, at the present time, the digital signature technology that must be applied.
There appears to be no restrictions or limitations on the use of electronic signatures in relation to the formation or operation of electronic contracts; as long as the association of the electronic signature with the person and the document is established and the intent to sign is demonstrated, an electronic signature so used will be valid.
Legislative Requirements for Electronic Signatures
In general, the legislation requires the following:
- A document or information in electronic form must be accessible by the other person so as to be usable for subsequent reference;
- A document or information in electronic form must be capable of being retained by the other person;
- A document or information in electronic form must be organized in the same or substantially the same way as the specific non-electronic form;
- The electronic signature must be reliable for the purpose of identifying the person; and
- The association of the electronic signature with the relevant electronic document must be reliable.
Consequently, in respect of the latter two points, these requirements will not be satisfied by the acceptance of an e-mail from a client or by a Member’s use of a password protected website.
Members must also keep in mind that consent is required prior to the use of an electronic signature. While the legislation does not define the method of consent, it does provide for implied consent. For example, the legislation generally states that consent may be inferred from a person’s conduct if there are reasonable grounds to believe that the consent is genuine and is relevant to the information or document.
Legal Opinion Required
The MFDA will require Members to obtain a reliable legal opinion confirming that the Member’s digital signature technology and system satisfies the legislative requirements in the jurisdictions in which it is intended to be applied. A Member may supply its own legal opinion or one from a certification authority.
To ensure that digital signatures are generated in a secure manner, a public key infrastructure (or PKI) can be organized under which a trusted third party, known as a certification authority, generates and assigns keys and issues certificates which serve to identify and authenticate the signer and his/her associates with the public key. FundSERV is an example of a PKI initiative in the mutual fund industry where FundSERV acts as a certification authority.
Provincial Electronic Commerce Legislation
|ALBERTA||Electronic Transactions Act – awaiting proclamation|
|BRITISH COLUMBIA||Electronic Transactions Act|
|MANITOBA||The Electronic Commerce and Information Act – awaiting proclamation|
|NEW BRUNSWICK||Electronic Transactions Act|
|NEWFOUNDLAND||Electronic Commerce Act|
|NOVA SCOTIA||Electronic Commerce Act|
|ONTARIO||Electronic Commerce Act|
|PRINCE EDWARD ISLAND||Electronic Commerce Act|
|QUÉBEC||An Act to establish a legal framework for information technology (see also article 2827 of the Civil Code of Québec)|
|SASKATCHEWAN||The Electronic Information and Documents Act, 2000|
|YUKON||Electronic Commerce Act|
EXAMPLES OF REQUIREMENTS FOR SIGNATURES UNDER MFDA RULES, POLICIES AND FORMS
Service Arrangements – Rule 1.1.3(e)
Employment Agreement – Rule 1.1.4(e)
Agent Agreement – Rule 1.1.5(k)
Introducing and Carrying Agreement – Rule 1.1.6(a)(iv)
Introducing and Carrying Arrangement – Written Client Acknowledgement – Rule 1.1.6(b)(viii)
Business Names, Styles – Written Consent of Member for use of Trade Name by Approved Person – Rule 1.1.7(b)(i)
Confidential Information – Prior Written Consent of Client to disclose – Rule 2.1.3(a)
New Account Application Form – Client Signature – Rule 2.2.2
Updating Know-Your-Client Information – Written Authorization for Change in Client Name – Rule 2.2.4(c)
Referral Arrangements – Requirement for Written Agreement – Rule 2.4.2(b)(ii)
Transfers of Account – Written Authorization of Client – Rule 2.12.2 Segregation Agreements – Written Consent of Member to the Use or Disposition of Securities – Rule 3.3.3(b)
MFDA Policy No. 1 – New Registrant Training and Supervision – Confirmation of Completion of New Registrant Training and Supervision Program
MFDA Policy No.2 – Minimum Standards for Account Supervision – Schedule 1 – New Account Application Form
Form 1 – MFDA Financial Questionnaire and Report