For a contract to be enforceable, a signature is not always a requirement. However, there are exceptions, such as contracts respecting land – a typical contract for purchase and sale of a residential property, as an example.
A recent decision of the Supreme Court of British Columbia – Ross v. Garvey, 2025 BCSC 705 – serves as a reminder that a contract respecting the sale of land must be in writing and signed in order to be enforceable in British Columbia.
Facts
The buyer, Daniel Ross, who is the plaintiff in this matter, made an offer to purchase a residential lot in Saanich, British Columbia, to the sellers – Kyle Garvey and Matthew Garvey, the defendants. The sellers did not hire a realtor for this transaction.
The defendants sent a counteroffer by increasing the price of the property, among other terms. However, the sellers did not sign the counteroffer. The buyer accepted the unsigned counteroffer, and requested the sellers to return a signed copy to him, which did not happen.
The sellers refused to proceed with the transaction. Mr. Ross sued to obtain an order for specific performance or damages for breach of contract. In this scenario, an order for specific performance would mean a Court order requiring the sellers to proceed with transaction and sell the property to the buyer.
Issues
The Court had to determine whether (1) there was a valid contract; and (2) if the contract was valid, whether it can be enforced for the purposes of the transfer of real estate in British Columbia.
Decision
The Court found for the sellers. The parties had a valid contract. However, because the counteroffer was unsigned, the contract was not enforceable.
1. The Court held that the contract was valid.
As to validity of a contract, the Court referred to a well-known principle: a contract is formed where one party accepts an offer made by the other party with an intention of creating a legal relationship, which is supported by consideration.
Consideration is typically a sum of money.
The sellers made an offer to the buyer to purchase their property, by sending a counteroffer. The buyer accepted the offer. It was clear that the parties intended to form a legal relationship – the sellers wanted to sell the property, and the buyer wanted to buy it. There was no ambiguity as to essential terms of the contract, such as the subject, price, deposit, and other terms.
Last, the Court reminded that contracts may be made orally, by conduct, and in writing. In most cases, contracts will be enforceable in any of these scenarios.
2. Despite finding that the contract was valid, the Court concluded that it is not enforceable.
The Court referred to a decision in Achter Land & Cattle Ltd. v. South West Terminal Ltd., 2024 SKCA 115. In that decision, the Saskatchewan Court of Appeal held that a “thumbs up” emoji constituted a valid signature, making the contract binding. However, in that dispute, a contract for the sale of flax seed was at issue, whereas here, a real property contract was subject to litigation.
Contracts respecting land are not typical contracts, such as contracts relating to sale of goods.
In British Columbia, it is a statutory requirement, that in order to be enforceable, contracts respecting land must be in writing and signed by the party to be charged: s. 59(3)(a) of the Law and Equity Act, RSBC 1996, c. 253.
In this case, the contract was also subject to the Electronic Transactions Act, SBC 2001, c. 10, meaning that an electronic signature, or other formal mark reflecting the identity of its author would suffice.
The buyer argued that the contract was “signed” because (1) the counteroffer was sent from the sellers’ email account; and (2) one of the owners texted a “thumbs up” emoji in response to his text, stating that his accepted offer was sent to the sellers’ email.
The Court did not agree with the buyer’s arguments.
3. The Court stated that “… in order for the contract to be enforceable, the party charged must have inserted a signature in the writing for the purpose of authenticating the document.”
Here, the sellers did not affix a signature, either electronically or by hand. As a result, the contract, albeit valid, is not enforceable against the sellers.
In British Columbia, real estate market is dynamic. Both, buyers and sellers, are often under pressure and time constraint to conclude a transaction in an attempt to secure a fair price. Despite that, the parties should be cautious.
It is highly recommended, for each side to be represented by a realtor and lawyer when it comes to a real estate transaction, whether it is a residential or commercial property. Any real estate transaction involves a number of steps and requirements, often not known to unrepresented parties.
Link to decision: https://www.canlii.org/en/bc/bcsc/doc/2025/2025bcsc705/2025bcsc705.html
