( Disponible en anglais seulement )
Earlier this year, we wrote here about the decision in I.D.H. Diamonds NV v Embee Diamond Technologies Inc., 2017 SKQB 79, where Mr. Justice Layh held:
a) that the sort of informal email discussions that are commonplace in today’s business communications can be relied on as an acknowledgement of a debt, so as to extend a limitation period under Saskatchewan’s The Limitations Act (the “Act”), even if the debt is not expressly referenced in many of the communications; and
b) that emails can satisfy the formal requirements under the Act that such acknowledgements be in writing and be signed, even though no formal handwritten or electronic signature may have been applied.
As we noted in our earlier post, an ordinary name and address box at the foot of an email was considered to be sufficient to satisfy the formalities.
Embee Diamond Technologies Inc. brought an appeal of that decision. We had promised readers an update upon further developments occurring.
On September 19, 2017, the Court of Appeal decided the appeal in Embee Diamond Technologies Inc. v I.D.H. Diamonds NV, 2017 SKCA 79, giving brief oral reasons.
In short, the Court of Appeal found no error in Mr. Justice Layh’s reasoning, including his application of The Electronic Information and Documents Act, 2000 (Saskatchewan), and upheld His Lordship’s decision in full.
Mr. Justice Layh had cited similar decisions in Lev v Serebrennikov, 2016 ONSC 2093 and Gryckiewicz v Ironside, 2015 ABQB 284. After Justice Layh rendered his decision, it was considered by the Supreme Court of British Columbia in Johal v. Nordio, 2017 BCSC 1129 in a similar situation and under similar B.C. legislation. Madam Justice Russell applied Justice Layh’s reasoning and found that the debt in that case had been acknowledged by emails, thus extending the limitation period.
Thus, courts in B.C., Alberta, Saskatchewan and Ontario have now held that debts can be acknowledged by ordinary exchanges of emails so as to extend limitation periods, provided that other requirements are met, such as that the acknowledgment must have occurred within the limitation period. That approach seems likely to spread to other provinces that have similar legislative requirements for acknowledgement of debts.