A Thumbs-Up Emoji Costs a Canadian Seller $82,000–South West Terminal v. Achter Land

[A special post for my Canadian friends as a belated celebration of Canada Day. 🍁]

[DEC. 2024 UPDATE: see the appellate decision in this case.]

This case involves a Canadian transaction for flax. The court summarizes:

Mr. Mickleborough had a contract drafted for Achter to sell SWT 86 metric tonnes of flax to SWT at a price of $17.00 per bushel (which amounts to $669.26 per tonne) with a delivery period listed as “Nov”. Mr. Mickleborough applied his ink signature to the contract, then took a photo of the contract using his cell phone. Mr. Mickleborough then texted the photo of the contract to Chris Achter at 306-264-XXXX, along with the text message: “Please confirm flax contract”. Chris Achter texted back from 306-264-XXXX a “thumbs-up” emoji. [Eric’s note: I took out the last four digits of Achter’s phone number, though it’s in the opinion.]

The parties had a course of dealing that included Achter apparently approving orders by text message in one-word replies. Achter didn’t deliver the flax, and prices went up. SWT claims damages of $82k Canadian.

Achter offered this explanation of his use of the thumbs-up emoji:

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

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The judge initially turns to the Dictionary.com definition of the thumbs-up emoji: “it is used to express assent, approval or encouragement in digital communications, especially in western cultures.”  The judge then says that definition “comport[s] with my understanding from my everyday use – even as a late comer to the world of technology.” I can understand why the judge wanted to sanity-check an online dictionary, but I would have gotten worried if the judge had let his first-hand intuition override the dictionary.

[FWIW, Dictionary.com doesn’t attempt to define all emojis, but it’s one of the most authoritative sources for the emojis it does define.]

The court then says the course of dealing is decisive:

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.

The court then confirms that the thumbs-up emoji constitutes an electronic signature under Canadian law:

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….

This court readily acknowledges that a 👍 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” – to identify the signator (Chris using his unique cell phone number) and as I have found above – to convey Achter’s acceptance of the flax contract.

The court awarded the buyer’s request of $82k of damages.

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I’ve previously blogged two U.S. cases interpreting the thumb’s-up emoji:

In Lightstone v. Zinnex, the court denied summary judgment about whether a texted thumbs-up emoji created a contract because the prior text messages hadn’t clearly signaled a meeting of the minds. The Achtel case is different because the surrounding messages didn’t signal any unresolved issues, and the parties had a past course of dealing consistent with contract formation.

In Bardales v. Lamothe, the court held that the use of a thumbs-up between estranged parents didn’t mean the parent acceded to the other parent moving out of the country. This result makes sense both because of the irresolute nature of the text message stream and the high stakes of the question.

In my post on the Lightstone case, I enumerated 37 U.S. opinions referencing the thumbs-up emoji as of October 2022. The number is up to 45 now.

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One way of restating this case is that a thumbs-up emoji cost the seller $82k. Use your thumbs-up wisely…but that’s good hygiene for all emojis, not just the thumbs-up. Plus, remember that the thumbs-up gesture can have offensive connotations in some countries, and GenZ thinks thumbs-up emoji usage is passive-aggressive.

The court did a nice job interpreting the emoji, and did an even better job by showing emojis in the opinion (though the judge did not necessarily confirm that the emoji depicted in the opinion was identical to the one that the sender or recipient saw). Shoutout to Judge Timothy Keene on the King’s Bench in Swift Current, Saskatchewan. Overall, I give this ruling a 👍!

Case Citation: South West Terminal Ltd. v Achter Land, 2023 SKKB 116 (CanLII) (June 8, 2023)