In what circumstances will the doctrine of non est factum be applied in real estate contracts where the contract is not binding?

In Zhang v. Soong, 2012 BCSC 758, the defendant was a 75-year-old woman who spoke basic English, but could not read or write the language. She sought to avoid a contract for sale of her residential property. The defendant said the realtor did not explain the documents prior to her signing them. She said the realtor actually told her many times that, notwithstanding the signed documents, she could stop the sale at any time. The realtor denied this. The realtor said she did explain the contract to the defendant, including that it would be binding. On a summary trial application, Justice Gray was unable to resolve the factual dispute. She did suggest that had she accepted the defendant’s evidence, the doctrine of non est factum would have been available. The defendant could not read the contract. In those circumstances, it was reasonable for her to rely on her real estate agent to explain what the contract said: para. 95. If the real estate agent had in fact told the defendant that the contract was rescindable at any time, that would be a fundamentally different agreement than what was actually signed, and the defendant would not have been careless in signing it: para. 95.

1468025 Ontario Limited v. 998614 Ontario Inc., 2015 ONSC 7216, aff’d 2016 ONCA 504 involved financial arrangements between two companies controlled by a son and his father. The plaintiff son sought to enforce a loan agreement against the father and his company. The father relied on non est factum, claiming that at the time he signed the loan agreement, he was 68 years old with a limited capacity to read English, and only a grade one education. The court held that the father was literate enough to be able to understand the general nature of the signed agreement, and that he had, in fact, understood it. Further, on the father’s own version of events, he had signed the agreement without attempting to read it and without asking any questions. This despite the fact that he was in a law office at the time, with a lawyer with whom he was comfortable. The court found he was careless, and declined to accept the defence.