Saskatchewan's Court of Appeal has upheld a previous ruling that the thumbs-up emoji affirmed a contract between two agricultural companies.
Achter Land & Cattle Ltd appealed a 2023 Court of King's Bench ruling that its owner had agreed to sell flax to a grain buyer at South West Terminal (SWT) after he responded to a text containing photos of the $58,000 contract with a thumbs-up emoji.
Actors grow and sell grain on land and cattle. The company has sold grain to SWT since about 2012, according to court documents.
In March 2021, an SWT employee sent Chris Acker a photo of the front of the two-party agreement with the message, “Please confirm the Flax Agreement.”
The employee, Kent Mickleborough, said he spoke with Achter and Achter's father, who helps with farm operations, and reached a verbal agreement to buy the flax for $17 a bushel, with shipment suspended until shipment.
A Court of King's Bench ruling in June found that the thumbs-up emoji did confirm the contract, despite Achter's contention that he never signed the contract.
'A different way of communicating'
Josh Morrison, counsel for Southwest Terminal, said modern law is media neutral. He said the text message exchange was the contract – which included a photo of the contract and its details, a message asking for confirmation and a thumbs up emoji.
“It's not really different from the words written in previous contracts — well, looks good, yes — the thumbs-up emoji is just a different way of communicating,” he said.
The court ruled that the metadata of a personal cellphone was sufficient to consider an emoji a personal signature.
According to Actor's testimony, Actor Land and Cattle “did not harvest a bushel of flax” that year.
When it came time to deliver the fax between September and November, the price had risen by $24 per bushel.
The King's Bench of the Court ruled that Achter must pay SWT a difference, approximately $82,200 in damages and interest, for breach of contract, among other costs.
Morrison said Actor Land and Cattle's next course of action would be to take the case to the Supreme Court of Canada, but the court would have to decide the national importance of holding the case in order to hear it.
Morrison said it's unclear whether the case sets a precedent, because the two sides had a history of previous deals based on the decision.
A proper signature
Two Court of Appeals judges upheld the original ruling, finding that the two companies had communicated the essential terms of the contract, the intent to enter into the contract and the electronic signature by emoji.
Syngrafii Inc., an intervenor in the case, argued that the text message could not be considered an electronic signature because it was not a physically signed document.
The court disagreed because the emoji was “part of a series” that included a photograph of the contract and, therefore, related to the contract.
Syngrafii Inc. COO John Gruetzner said he was pleased the court noted in its ruling that governments need to consider revising laws around signatures, given how compliance has changed.
“I think you have to have a joint review of this, both at the provincial and federal level, and frankly that's easier said than done,” he said.
Disagreement among judges
Not all appellate judges sided with the previous ruling entirely.
A judge agreed that there was an agreement between the two companies outlined in the text messages, but disagreed that Achter's text was signed.
Justice Brian Barrington-Foot wrote that there needed to be something more substantial than a “yes” in the answer to the contract, even if it came from an identifiable phone number.
Barrington-Foot argues that characterizing metadata as a signature would “unnecessarily and unfairly stretch the signature requirement beyond recognition.”
He held that the trial judge erred in his interpretation of the Sale of Goods Act and the appeal should have been allowed.
