The Court in Business Development Bank v 1956680 Alberta Inc, 2021 ABQB 141 described the plea of non est factum.
The plea of non est factum was explained by the Supreme Court in Marvco Color Research Ltd. v Harris 1982 CanLII 63 (SCC), [1982] 2 S.C.R. 774 at page 778:
... where a document was executed as a result of a misrepresentation as to the nature and character and not merely its contents the defendant was entitled to raise a plea of non est factum on the basis that his mind at the time of the execution of the document did not follow his hand. In such a circumstance the document was void ab initio.
(emphasis added)
[32] The Supreme Court in Marvco observed at page 780 that the plea of non est factum sprang into prominence with the judgment of Foster v MacKinnon (1989), L.R. 4 C.P. 704 which provides an illustration of the classic situation in which the plea can be raised. In that case the Defendant signed a document thinking that it was a guarantee when in fact it was a bill of exchange. The Court concluded that the Defendant never intended to sign a bill of exchange but intended to sign a contract of an entirely different nature. As a result, the plea of non est factum was successful.
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