There are many advantages to a paperless environment: time, costs, efficiency and space top the list. And today, with Quebeckers massively opting for digital technologies, electronic communications are becoming increasingly necessary for your business. Are you thinking about switching to electronic documents and communications? Let’s review the basics of what you need to know.

WHAT MAY BE SENT ELECTRONICALLY? 

Many firms want to go paperless and wonder what kinds of documents and information can be dealt with electronically. Generally speaking, you may choose to preserve your documents in either paper format or electronic format (e-mail, client profile or portal through which clients connect, etc.). Here are a few examples of what you can send by e-mail:  

• an insurance binder; 
• an insurance contract; 
• a renewal notice.

However, sometimes the legislation requires a specific medium, such as paper, or specifies the form (ex. in writing). The Civil Code of Quebec, for instance, stipulates that a decrease in coverage during the term of the contract is only valid if the insured gives consent in writing. Cancelling an insurance contract must also be done in writing. 

In the absence of such requirements, your electronic documents and transactions have the same legal value as their paper equivalent, as long as they comply with the legal requirements (see “What requirements must be met?”). 

Never forget that your ethical obligations still apply, regardless of the medium. For example, if you choose to transmit a renewal notice by e-mail, it must contain all the required information. It is your responsibility to personally gather the necessary information to determine the client’s needs and propose the appropriate insurance products.

USING E-MAIL AND TEXT MESSAGES WITH YOUR CLIENTS 

E-mails and text messages (also called “texts”) are quick, practical and can be personalised. No doubt about it, your clients use them too. It is estimated that throughout the world in 2017, almost 207 billion e-mails (excluding spam) are sent every day. In Canada, over 195 billion e-mails were sent in 2015–in other words, around 548 per user per month. However, using e-mail and text messages can raise issues related to your legal and ethical obligations. 

For example, an e-mail address does not necessarily allow you to identify the account owner. Furthermore, it can be used by a number of people in the same business or the same family, making it difficult to determine who will be the actual recipient. Moreover, it is possible that your clients do not use a secure connection to access their e-mail box. 

In this context, before sending sensitive information by e-mail, confirm the address that you intend to use for your client. Furthermore, suggest to your client that you send him encrypted messages that are unreadable without an activation key. If the client refuses this option, explain the potential risks to him and obtain his explicit consent before going any further. 

Your obligations with respect to record keeping and notes in the file also apply to the electronic world. If you receive instructions from your client by text message, you must be able to put this message in his client-file (or “client-record”). Ensure that once it is in the file, the text message may be read upon request; furthermore, it must be intelligible, and its integrity must be preserved. If you are unable to meet these requirements, it is preferable to ask your clients to send you an e-mail. 

Under certain circumstances, you will have to ask for an individual’s signature to confirm his consent and verify his identity. Legally speaking, a signature may be provided using a technological medium such as:  

• clicking on the “I agree” box; 
• signing at the bottom of an electronic form using a tablet stylus; 
• providing a personal identification number; 
• simply adding a name at the bottom of the e-mail.

In all cases, however, the signature must be acceptable as confirmation of the signer’s identity and consent. 

Furthermore, the written word (be it in an e-mail or a text message) can sometimes be misinterpreted or only partially understood, whereas during a face-to-face conversation, there is an opportunity to ask questions or provide clarification. If need be, call your client or meet him in person to clarify his intentions and statements. Your duty to advise must always remain central to your role as a professional, even when working in a paperless environment.

WHAT REQUIREMENTS MUST BE MET?

To ensure that your electronic documents have the same legal value as their paper equivalents, they must meet certain legal requirements with respect to the identity and consent of the parties, and the integrity, availability and confidentiality of the documents.  

First, the Act to establish a legal framework for information technology (AELFIT) sets out the rules that must be followed when managing electronic documents to ensure their legal value. According to the AELFIT, the document’s integrity must be preserved. In other words, it must be demonstrated that the electronic document is complete and has been neither damaged nor altered at any point in its existence. If you make any changes to an electronic document, you must document this change, noting who requested the change, who made it, and when and why the change was requested. 

Furthermore, the document’s availability must be guaranteed. To fulfill your mandate, you must be able to access documents in the client-file. In addition, a person duly empowered by the law—for instance a member of the Syndic’s Office—must also have access to it upon request and it must be in an intelligible form. 

Finally, as a professional, you are in possession of and have access to personal, confidential information on your clients. The Act respecting the protection of personal information in the private sector as well as your code of ethics (damage insurance representatives and claims adjusters) require that you ensure the confidentiality of this personal information. You must therefore establish security measures to protect this sensitive data, including access procedures, confidentiality agreements, secure connections, firewalls, authentication systems, etc. 

GOING DIGITAL

Reliability should be the decisive factor when choosing the technology you will use for your electronic documents and messages. This will ensure the confidentiality, integrity and availability of the document’s contents throughout its life cycle.

For example, when transferring documents from paper to a digital medium, you will probably have to digitize the files and documents already in your possession. This solution must allow you to preserve the integrity of the documents transferred. In accordance with the legislation in force, you will have to document the transfer process in order in order to prove that you carried it out. This reference documentation must include:

• the document’s original format (i.e. paper); 
• the technological procedure used (i.e. scanning); 
• the characteristics of the procedure (i.e. information regarding the scanner).

Before destroying your paper copies, ensure that every page of the document has been properly scanned and that the entire text, including images and handwritten notes, is visible. 

Moreover, damage insurance and claims adjustment firms have an obligation to preserve their client-files for five years following the date of the last transaction or service rendered, or following the date at which the file was closed. Documents may also be preserved for tax or administrative reasons. 

Throughout the prescribed preservation period, the document’s integrity, confidentiality and availability must be ensured. Here too, the choice of technologies is paramount. What would happen if the preservation technology chosen ceased to be available? Remember, in the mid-1980s, files were stored on diskettes. Ten years later, CD ROMs were the storage option of choice, and then DVDs. Therefore, regardless of the medium you use to preserve your documents, make sure you also keep the equipment and software needed to read them. If the medium used was encrypted or password protected, you will also need to conserve the information needed to access the data it contains. 

Today, it has become more and more popular to store documents “in the cloud.” However, nothing guarantees that this technology will not be replaced one day by another, newer technology. In addition, many services of this type have been the target of malicious or negligent acts that could compromise the integrity, confidentiality or availability of documents stored in this way. Thus, if you decide to use the services of a specialized company to store your documents, you must notify the company of your specific needs with regards to confidentiality and rights to access. For its part, the company must ensure that it has the means to guarantee the security, integrity and confidentiality of the data. In particular, it should frequently and regularly create backup copies.

Make sure that all individuals authorized to consult these documents are able to easily find and access them. Create a consistent filing system that is used by all firm employees, and, where applicable, by the company responsible for preserving your documents. 

And finally, when it is time to destroy your digital documents, ensure that you have respected the confidentiality of the sensitive data they may contain. Once they have been destroyed, it should be impossible to reconstitute these documents. Use specialists to help you set up safe methods and procedures. Do not forget that your obligation to confidentiality also applies to paper documents: you must shred them or entrust this task to specialists. 

GLOSSARY

Retention: storing documents so that they can be found later, on request, without having been altered.

Consultation: making a document presented in an intelligible form available to authorized persons.

Electronic document: a recording made, transmitted, received or stored electronically. 

Signature: a tool representing a personal mark which is commonly used by a person to show consent.

Transfer: the action of changing a technology-based document from one medium to another.

Transmission: sending a document from one person to another using information technology, unless prohibited by law or regulation.

Sources : 

• Guide respecting the management of technology-based documents, Fondation du Barreau du Québec 
• Advisory Report: Electronic Signature and Electronic Delivery of Insurance Documentation, CSIO