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Contract - Defences - Non Est Factum

Civil Procedure - Pleadings

Bulut v Carter (Ont CA, 2014)

In this case the Court of Appeal addressed two legal issues, the first being the nature of the contractual defence of "non est factum" (it's not my deed):
[18] The trial judge correctly set out the test for non est factum identified in the seminal case of Marvco Colour Research Ltd. v. Harris, 1982 CanLII 63 (SCC), [1982] 2 S.C.R. 774. The defence of non est factum is available to someone who, as a result of misrepresentation, has signed a document mistaken as to its nature and character and who has not been careless in doing so.


[24] Misrepresentation is essential to a plea of non est factum. See Dorsch v. Freeholders Oil Co. Ltd., 1965 CanLII 90 (SCC), [1965] S.C.R. 670.
The second issue related to the extent to which legal issues had to be set out in pleadings in order to be arguable by the party advancing them. Essentially the court held that if the material facts underpinning the legal principle that the party wished to advance were set out in the pleadings, even though the legal doctrine was not expressly pled, then the party may advance that legal argument:
[12] Fairness dictates that lawsuits be decided within the boundaries of the pleadings. A party has the right to know the case it has to meet and to have the opportunity to meet it: Rodaro v. Royal Bank of Canada 2002 CanLII 41834 (ON CA), (2002), 59 O.R. (3d) 74 (C.A.).

[13] The defence of non est factum was not expressly identified in the respondents’ amended statement of defence and counterclaim. However, in their pleading, the respondents did allege that they did not understand the nature of the document they signed. On this basis the trial judge held that the respondents were entitled to rely on the defence, if proven.

[14] We agree. In their amended statement of defence and counterclaim the respondents asserted that they were unaware that they had personally guaranteed Carter’s Printing’s debt to the appellant and pleaded various circumstances surrounding that assertion. They alleged that the lawyer did not explain the document and did not provide them with an opportunity to read it. The respondents pleaded that they, in fact, signed the guarantee without reading it and it was only later that they learned that they had signed a document in which they personally guaranteed the company’s indebtedness under the promissory note.

[15] The defence was sufficiently set out to enable the appellant to respond and the record establishes that battle was joined on that issue.

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