Ontario Civil


Remedy of non est factum not available to willfully blind

Guarantees were provided by defendants for term loan made to defendant husband’s company, and defendants signed unlimited, continuing guarantee. Demand was made and then action commenced. Motion by plaintiff for summary judgment against defendants on guarantees. Defendant wife raised defences of non est factum and unconscionability. Motion granted. Defendant’s claim she spoke little English after 40 years in Canada and five children and 15 grandchildren raised here was incredible. Defendant owned real estate and, while she was not shareholder, officer or director of debtor, she clearly benefitted from husband’s financial dealings, so guarantee and enforcement not unconscionable. It was incredible defendant did not ask any questions before signing guarantees or that lawyer for debtor provided no explanation or information. Remedy of non est factum not available to wilfully blind, and plaintiff had opportunity to make inquiries. Defendant’s husband was not agent of plaintiff so could not have made misrepresentations to bind plaintiff. While defendant trusted husband, there was no evidence he coerced, bullied or forced her to sign, or that she did not have operating mind. Guarantee valid and enforceable against both defendants and plaintiff entitled to amount owing.

Meridian Credit Union Ltd. v. Vrankovic (Dec. 6, 2013, Ont. S.C.J., C.A. Tucker J., File No. Welland 1039/10) 236 A.C.W.S. (3d) 447.

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