Can a wordless communication, such as an emoji, gesture, or symbol constitute acceptance of a contract?

[24] I find this to be very similar to the durum contracts referred to above including Kent’s use of the phrase “Please confirm flax contract” (the only difference being the use of the word flax instead of the word durum) and this time instead of words like “ok”, “yup” or “looks good” being texted by Chris – a commonly used 👍 emoji was texted by Chris.

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[31] A starting point is that the 👍 emoji has arrived in the world of dictionary meaning: “it is used to express assent, approval or encouragement in digital communications, especially in western cultures (👍; Dictionary.com online: <https://www.dictionary.com/e/emoji/thumbs-up-emoji/> (17 May 2023)). I am not sure how authoritative that is but this seems to comport with my understanding from my everyday use – even as a late comer to the world of technology. However rather than simply relying on judicial notice – I will also look at what Chris deposed in his affidavit. For convenience I repeat his para. 8 here:

8. I confirm that the thumbs-up emoji simply confirmed that I received the Flax contract. It was not a confirmation that I agreed with the terms of the Flax Contract. The full terms and conditions of the Flax Contract were not sent to me, and I understood that the complete contract would follow by fax or email for me to review and sign. Mr. Mikleborough [sic] regularly texted me, and many of the messages were informal. Attached as Exhibit “A” is one example of many jokes that Mr. Mikleborough [sic] would send me. I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract. I did not have time to review the Flax Contract and merely wanted to indicate that I did receive his text message.

[32] In my opinion this paragraph appears to be carefully crafted to state that there was a confirmation of the receipt of the contract (seemingly denoting a form of acknowledgement) which I took to mean that Chris understood a 👍 emoji means “ok” or something affirmative. This ends up being a bit of a cake and eat it too situation – Chris wants the court to accept the 👍 emoji meant only he got the contract but not that he approved the contract. This is of course somewhat self-serving.

[33] It is interesting to note that Chris from that point on never contacted Kent or anyone at SWT to discuss the flax contract further except for a brief discussion about a possible crop failure in September 2021. Chris would have the court believe that during the crop growing season he believed there was no flax contract with SWT.

[34] The facts seem to be somewhat different. Chris responded to the offer to contract – Kent called him because through Bob Achter (Chris’s father) Chris had expressed interest in a flax contract. There would be no other purpose for Kent’s telephone call on March 26, 2021 to Chris. During that call Kent and Chris talked about the flax contract and just like in previous occasions with the durum contracts a deal appears to have been at least verbally struck. This was followed up by Kent sending a screenshot of the clearly titled Deferred Delivery Production contract indicating the product (flax), price and the parties just as they had done on numerous occasions before without any issues. Kent added “Please confirm flax contract” – just as he had done in the past with the exception of the word flax instead of durum was used. Chris responded from his cell phone with a 👍 emoji.

[35] I prefer Kent’s evidence that the above had been discussed. The court does not accept Chris’s version (para. 8 of Chris’s affidavit) because the circumstances leading up to the conversation (multiple previous contract negotiations resulting in contracts) support Kent’s recollection – indeed Kent ultimately sent the texted contract offer shortly after the gentlemen ended their telephone call. Even though this is a summary judgment application, I am satisfied that I can resolve this evidentiary dispute on the affidavit evidence without the necessity of a trial.

[36] I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a 👍 emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions.

[37] Additionally, I find under these circumstances a 👍 emoji is “an action in electronic form” that can be used to allow to express acceptance as contemplated under The Electronic Information and Documents Act, 2000, SS 2000, c E-7.22 [EIDA] as per s. 18:

18(1) Unless the parties agree otherwise, an offer or the acceptance of an offer, or any other matter that is material to the formation or operation of a contract, may be expressed:

(a) by means of information or a document in an electronic form; or

(b) by an action in an electronic form, including touching or clicking on an appropriately designated icon or place on a computer screen or otherwise communicating electronically in a manner that is intended to express the offer, acceptance or other matter.

(2) A contract shall not be denied legal effect or enforceability solely by reason that information or a document in an electronic form was used in its formation

[38] I note Justice Scherman in Quilichini v Wilson’s Greenhouse, 2017 SKQB 10, [2017] 8 WWR 375 [Quilichini] interpreted this provision of the EIDA as follows:

[10] The legislation is clear. Agreement to contractual terms can be expressed by touching or clicking on an appropriately designated icon or place on a computer screen. The fact that the contract could have alternatively been executed by printing a hard copy and having a participant sign a hard copy form does not detract from the foregoing. The fact that there are optional ways to execute the contract does not lead to the conclusion that using only one of those options does not constitute agreement.

[39] The defendant argues that contrary to all of the above – an actual signature is essential because it confirms the person’s identity and a signature conveys a message – in this case acceptance. However, I do not find that argument persuasive. I agree a signature in the classic presentation does denote identity and confirmation of an agreement (See para. 56 following in this judgment). However, that in itself does not prevent the use of a modern day emoji such as a 👍.

[40] Counsel for Achter remonstrates that allowing a simple 👍 emoji to signify identity and acceptance would open up the flood gates to allow all sorts of cases coming forward asking for interpretations as to what various different emojis mean – for example what does a 👊 emoji mean or a 🤝 emoji mean, etc. Counsel argues the courts will be inundated with all kinds of cases if this court finds that the 👍 emoji can take the place of a signature. This appears to be a sort of public policy argument. I agree that this case is novel (at least in Saskatchewan) but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage – this appears to be the new reality in Canadian society and courts will have to be ready to meet the new challenges that may arise from the use of emojis and the like.

[41] I acknowledge the defendant relies on Can-Am Farms Ltd. v Parkland Pulse Grain Co. Ltd., 2004 SKQB 58. However that case is distinguishable on the facts. In that case the grain buyer was waiting to hear back from a seller – nothing had been agreed upon and there was no consensus as idem. There was no contract signed. Justice Krueger held it was incumbent on the grain buyer to inquire with the seller subsequent to the parties’ telephone call to see what was going on. Here the 👍 emoji was Chris’s response to an offered flax contract. This is substantially different in my opinion.

[42] For the above reasons I find that the parties entered into a binding legal contract under the unique circumstances of this case. Therefore this issue does not require a trial.

The test of whether conduct, unaccompanied by any verbal or written undertaking, can constitute an acceptance of an offer so as to bind the acceptor to the fulfilment of the contract, is made the subject of comment in Anson on Contracts, 21st ed., p. 28, where it is said:

The test of such a contract is an objective and not a subjective one, that is to say, the intention which the law will attribute to a man is always that which his conduct bears when reasonably construed, and not that which was present in his own mind. So if A allows B to work for him under such circumstances that no reasonable man would suppose that B meant to do the work for nothing, A will be liable to pay for it. The doing of the work is the offer; the permission to do it, or the acquiescence in its being done, constitutes the acceptance.

[4] We disagree with the motion judge’s conclusion. On the issue of delay, although the appellant did not sign the lease agreement upon receipt and did not promptly return a signed copy by the respondent, there remains at minimum a triable issue as to whether the contract was accepted by conduct. At common law, an offer can be accepted by conduct if a) the conduct was performed with a view to acceptance of the offer and not for some other motive and b) the conduct was intended to serve as acceptance of the offer in question: G.H.L. Fridman, The Law of Contracts in Canada at p. 52.