Case information

Sale of goods — Contracts — Provincial legislation providing that contracts not enforceable by action unless signed by party to be charged — Parties with history of agreeing contracts by text message — Chambers judge concluding that thumbs-up emoji constituted a signature in circumstances of present case — Whether Court of Appeal erred in affirming judgment of chambers judge — Whether emoji can constitute signature — The Sale of Goods Act, R.S.S. 1978, c. S-1, s. 6(1).

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The parties had discussed a contract in which the applicant would deliver flax to the respondent at a later date. An agent of the respondent sent a photo of the first page of the contract by text message to an agent of the applicant with the words “please confirm flax contract”. The applicant’s agent responded with a thumbs-up emoji. The applicant later took the position it was not bound to deliver the flax to the respondent. The respondent sought damages for breach of contract.

In the Court of King’s Bench, the chambers judge granted summary judgment in favour of the respondent. The parties had a long-standing commercial relationship in which the applicant would sell grain to the respondent. From 2020, the parties would enter into such contracts by text message, which the applicant’s agent would approve with brief messages such as “yup”, “okay” or “looks good”. The procedure followed in the instant case was nearly identical, and in the circumstances of this case, the thumbs-up emoji constituted a signature that represented the applicant’s intention to be bound by the contract.

The Court of Appeal unanimously concluded that the parties had reached a consensus ad idem and that they had certainty of the terms of the contract. However, it was divided on whether the emoji constituted a signature for the purposes of s. 6(1) of The Sale of Goods Act (Saskatchewan). The majority held that the chambers judge did not err in concluding that the emoji constituted a signature in the circumstances of this case. It dismissed the appeal. Barrington-Foote J.A., in dissent, would have held that the chambers judge erred in concluding that the emoji amounted to a signature. In the circumstances, there was an insufficient basis to conclude that the emoji represented the applicant’s intention to be bound by the contract, even if the parties had agreed on the terms. Barrington-Foote J.A. would have dismissed the appeal.