E-Commerce, Implied Terms, and Related Legislation

• Author: Carolyn MacLean/Alex Colangelo
• Pages: 293-312

293

Electronic Commerce ................... 294

Authenticity of Documents and Electronic

Signatures ...................... 295

Place for Dispute Resolution ............ 297

Applicable Law for Dispute Resolution .... 299

Timing of Formation of Contract ........ 299

Protection of Privacy .................. 299

Contractual Terms Imposed by

Legislation ......................... 300

The Sale of Goods Act ................ 300

The Consumer Protection Act, 2002 ...... 305

Chapter Summary ...................... 308

Key Terms ............................. 308

Review Questions ...................... 308

Exercises .............................. 309

Appendix: Selected Cases, Legislation,

andCourt Rules .................... 310

Learning Outcomes

After completing this chapter, you should be able to:

• Understand the current state of the law with regards

to e-commerce and the matters the parties engaged

in e-commerce may need to consider.

• Understand the factors that affect the authenticity of

documents in e-commerce transactions.

• Explain the concept of jurisdiction in e-commerce

matters as well as the impact of jurisdiction and

applicable law when resolving contract law issues.

• Identify and explain contractual terms implied by

legislation.

E-Commerce, Implied

Terms, and Related

Legislation

16

© [2023] Emond Montgomery Publications. All Rights Reserved.

294 PART II CONTRACT LAW

Electronic Commerce

The ability to transact business over the Internet by participating in electronic com-

merce (e-commerce) is a significant and relatively recent development. E-commerce

brings together buyers and sellers from all over the world and provides unprecedented

opportunities for the exchange of goods, services, and ideas. Uber and Airbnb are

businesses that have been in existence for less than 15 years and have arguably

changed the landscape in their respective industries through e-commerce. Average

people enter into electronic contracts through Uber and Airbnb every day, contracts

that only 15 years ago were not an option. Such is the impact of the Internet.

Traditional contract law applies to Internet transactions, but there are many issues

associated with e-commerce that are contract-based, although new to contract law.

The Internet has expanded the possibilities in terms of contract opportunities, but it has

also introduced many new legal issues and risks. The advent of the Internet and the

increased use of the Internet for transactions nationally and globally have increased the

need for appropriate and expedient tools to govern online transactions and resolve

issues as they arise. Each province and territory, as well as the federal government, has

implemented legislation that addresses some of the risks associated with e-commerce,

such as the federal Personal Information Protection and Electronic Documents Act,1 the

Ontario Consumer Protection Act, 2002,2 and the Alberta Electronic Transactions Act.3

There is also protection through Canada’s anti-spam legislation,4 which prohibits

sending a commercial electronic message (CEM) to an electronic address via email,

instant messaging, telephone, or any similar account unless the recipient has con-

sented to receive the message and the message complies with certain formal require-

ments, including identifying the sender and providing an unsubscribe mechanism.5

Of note is that the CASL applies only where a computer system located in Canada

is used to send or access the CEM.6

The anti-spam legislation also defines what constitutes a “message” for the pur-

poses of the statute. More specifically, section 1(2) states that a message is a CEM if

“it would be reasonable to conclude [it] has as its purpose, or one of its purposes, to

encourage participation in a commercial activity.” For example, if the purpose of the

message is to advertise, promote, market, or otherwise offer a product, good, service,

business or gaming opportunity, or interest in land, it will be considered a CEM. The

expectation of profit may be considered by the courts but is not determinative.7

An issue that has become increasingly prominent, given the prevalence of

e-commerce as well as the use of the Internet for illegitimate reasons, is the liability of

1 SC 2000, c 5 [PIPEDA].

2 SO 2002, c 30, Schedule A [CPA].

3 SA 2001, c E-5.5 [ETA AB].

4 An Act to Promote the Efficiency and Adaptability of the Canadian Economy by Regulating Certain Activities That

Discourage Reliance on Electronic Means of Carrying Out Commercial Activities, and to Amend the Canadian

Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection

and Electronic Documents Act and the Telecommunications Act, SC 2010, c 23 [CASL]. CASL is the unofficial name

for the legislation.

5 Ibid, ss 6(1), (2).

6 Ibid, s 12(1).

7 Ibid, ss 1(1) “commercial activity,” (2).

© [2023] Emond Montgomery Publications. All Rights Reserved.