Thumbs up emoji case could be going to the Supreme Court 👍

A thumbs-up emoji can be seen in this file photo. (David Prisciak/CTV News)

Could a thumbs-up emoji be a legally binding signature?

After two unsuccessful challenges in Saskatchewan courtrooms, agriculture company Achter Land & Cattle Ltd. is taking the question to the country’s highest court.

“To get leave to go to the Supreme Court of Canada, you have to show that it is significant for the nation,” Sask. lawyer Tony Merchant said. “It isn’t good enough just to say a court of appeal, here the Saskatchewan Court of Appeal, got it wrong.”

Last December, the court of appeal upheld a 2023 Court of King’s Bench verdict that found that a thumbs-up emoji was a legally binding agreement between Achter Land & Cattle Ltd. (ALC) and South West Terminal Ltd. (SWT).

On March 26, 2021, a representative of SWT sent a text to the owners of Achter with details of a flax delivery agreement.

Following several calls, the contract was drafted.

The SWT representative took a photo of the signed contract and sent it to one of Achter’s owners with the message, “Please confirm flax contract.”

Achter owner Chris Achter responded with a thumbs-up emoji with no accompanying text, and the 87 metric tonnes of flax were never delivered.

The court’s decision considered the two company’s long standing business relationship — going back to 2012 — as well as previous agreements that were struck through one-word messages, such as “yup” and “ok.”

Josh Morrison, counsel for SWT, said those brief text messages established a pattern, which he believes makes it impossible to apply universally.

“I think this case is very, very unique to its facts,” he said. “Where two parties that had well-established form of contracting electronically, that entered into a number of contracts before this contract and performed. They had entered into a number of contracts after this contract, and performed.”

As part of the 2023 ruling, Achter Land & Cattle was ordered to pay SWT roughly $82,200 in damages, plus interest, because of the breach of contract and other costs.

Merchant says while contract law has progressed from using family seals hundreds of years ago, to handshakes and signed contracts more recently, a case like this highlights technology meeting contract law in the 21st century, and it is unclear if the Supreme Court will hear the case.

“The idea that you have to have everything by signature is just to show your intention,” Merchant said.

“So, the Supreme Court might say, well, this is interesting. What’s going on in an electronic world? What’s the difference between an electronic signature?”

CTV News contacted Achter Land & Cattle for an interview but did not receive a response.

-With files from David Prisciak