Sask. appeal court reserves decision on whether thumbs-up emoji can lock in $82K contract

A Saskatchewan appeal court has reserved its decision on whether an emoji should count as confirmation of a contract.

In June, a Court of King's Bench judge ordered Swift Current farmer Chris Achter to pay more than $82,000 to a grain buyer with South West Terminal (SWT). The ruling stems from a text message when the buyer, Kent Mickleborough, asked Achter to confirm a flax contract that requested more than 85 tonnes of flax to be delivered in the fall at about $670 per tonne.

Achter responded with a thumbs-up emoji.

The case hinges on whether the emoji confirmed the contract, or only confirmed receipt of it — and whether an emoji can ever be used as a signature.

In his June decision ruling in SWT's favour, Justice Timothy Keene wrote, "This court readily acknowledges that a [thumbs-up] emoji is a non-traditional means to 'sign' a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a 'signature.'"

Achter is now appealing that ruling.

"Our position is that the emoji cannot be a signature, basically because it does not convey the intention to be bound by an agreement the same as a normal signature would," said Jean-Pierre Jordaan, counsel for the defendant, in court on Tuesday.

The counsel for SWT disputed that.

"Can a text message chain, with a clear offer and — in our submissions — a clear acceptance by thumbs up emoji, constitute a note or memorandum signed by the party to be charged, pursuant to section six of the Sale of Goods Act?" counsel posed.

"Our answer to that question is yes; there is no magic in a signature."

The three appeal judges reserved their decision for an undetermined date.

What are the agreed facts?

South West Terminal is suing Achter Land and Cattle for breach of contract and damages.

Mickleborough, a farm marketing representative with SWT, texted producers, including Achter and his father, Bob Achter, the afternoon of March 26, 2021. Bob called Mickleborough.

According to court documents, Mickleborough then called Chris, drew up a contract with a delivery expected in "Nov," and signed the contract. Then he took a cellphone photo of the contract and texted it to Chris with the message "Please confirm flax contract."

Chris responded with a "thumbs-up" emoji, documents say.

By November, the price of flax spiked to about $1,614 per tonne. The flax SWT was waiting on never came.