Cases where plea successful

• Flexilease (Canada) Inc. v. Masters, [1997] O.J. No. 2872 (Ont. Ct. J. Gen. Div.) The defendant was a 64-year old with a grade six education. She was approached by her son to act as a guarantor for his lease of an automobile from the plaintiff. She agreed, but she executed the various lease documents as though she were the primary lessee and not the guarantor. When the payments under the lease stopped, the plaintiff repossessed the car. The defendant signed the documents without reading them, but claimed that she thought she was signing as a guarantor for her son. Wilkins J. wrote: “Having regard to the above passages, it seems reasonable for me to conclude that in situations where a party is significantly less well educated, noticeably of limited literacy in the English language and lacking a basic understanding of business or financing matters, the defence of non est factum might still be available despite the fact that the party did not read the document.” (at para. 31).
• Butt v. Humber, [1976] N.J. No. 36 (Nfld. Sup. Ct. T.D.) The defendant alleged that he signed an agreement that he believed was to contain a specified condition. The defendant alleged that the plaintiff deliberately omitted the relevant condition. The evidence demonstrated that the plaintiff could not read, though, as is the case with many individuals with low literacy skills, he learned to sign his name. There was evidence that someone carefully read over each document to the plaintiff. Goodridge J., referring to Thoroughgood’s Case, supra, wrote at para. 82: “I am aware and take judicial notice (if I may) of the fact that many illiterate people (and even many of those who are literate) will have a legal document read to them and will not understand it. Therefore, I think it follows that where a deed is read over and explained, and the explanation does not follow the intent of the document, the plea of non est factum is available if there is execution of the document following such reading and explaining.