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Ruling that found emoji legally-binding faces appeal in Sask. court

A Saskatchewan court ruling that found a thumbs-up emoji to be legally binding is being appealed in Regina.

The case, which made international headlines, surrounded a text conversation between South West Terminal Ltd. (SWT) and Achter Land & Cattle Ltd. over a flax contract.

On March 26, 2021, a representative of SWT sent a text to the owners of Achter with details of the flax delivery argument. Following several calls, the contract was drafted.

The SWT representative took a photo of the signed contract to one of Achter’s owners with the message “Please confirm flax contract.”

Achter’s owner responded with a thumbs-up emoji, court documents showed.

However, the flax was not delivered in November, as stated in the contract.

SWT argued that a text message with a thumbs-up emoji was understood as an agreement that Achter would deliver flax to the company.

Justice T.J. Keene agreed with SWT’s argument. The judge found that SWT and Achter had a long business relationship — with the former purchasing grain from the company since 2012.

Over the years, the two had often established contracts over a series of curt text messages, establishing a pattern that Keene says lent credibility to the idea that an emoji would be taken as a binding agreement in this specific context.

“Whatever you do on a contract should be equivalent to your signature,” said lawyer for Achter Jean-Pierre Jordaan. “If you type your name, that could be considered an electronic version of your signature.”

“Emojis have meaning,” SWT lawyer Josh Morrison rebutted. “That meaning can be interpreted by the court.”

Jordaan argued emojis should be left for casual conversation.

“I don’t see emojis in contracts, I don’t expect to see [them] in contracts,” he said. “I don’t see emojis in court dealings, I don’t expect to see emojis in court dealings.”

SWT was awarded $82,200 in damages, plus interest and court costs in the ruling.

As a result of the 2023 ruling, Syngrafii — a Canadian technology firm which provides a wide range of remote signing tools including eSignatures — has signed onto the litigation as an intervener.

Their position in court is parties should not be presumed to be providing an electronic signature where the person’s information or mark is not applied to the full contract or document itself.

“The same would be required in a paper-based context,” said Syngrafii lawyer Milica Pavlovic. “The law around electronic contracting should develop in such was as to ensure equivalency to paper-based contracts. Nothing more. Nothing less.”

The appeal’s three justices reserved their decision Tuesday to a later undetermined date.

Speaking to CTV News last July, commercial attorney Michael Conlon said any appeal to the ruling would be an uphill battle.

“I think the defendants might be facing an uphill battle on appeal. The important thing here was a history between these two parties that went back years,” he said.

Speaking on potential precedent setting, Conlon doubted the case would have that effect.

“I don’t think necessarily this decision means that anyone sending a thumbs-up emoji over text has to be worried that they’ve entered into a binding contract,” he explained.

The appeal was heard at Saskatchewan’s Court of Appeal in Regina on Tuesday.

With files from Chandra Philip

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