Agents Need to Confirm the Language of Communication
This advice arises from a recent trial and the Judge’s comments regarding the use of an interpreter. In fact it was the misuse of the Interpreter at trial which caught the Judge’s attention.
Trial Judge’s comments on the issue
Judge J.B. McNulty delivered a Judgment in the case of Century 21 People’s Choice Realty Inc. v. Saleem on 29 March, 2016. In this case a “non est factum” defence was used and was effective. This essentially means that the Buyer did not understand what he was signing.
The Judge accepted the defence as “proven” and denied the real estate agents the commission.
From the Reasons for Judgment:
 We have been asked, again, as in this case, to focus on the education, sophistication, language skills, and real estate experience of the potential buyer.
 And we have been asked, as in this case, to consider the application of the principle of Non Est Factum when looking at the circumstances in which a buyer representation agreement was presented to the buyer, signed, initialed, and returned to the real estate agent in question.
 Typically in these cases we hear two scenarios as to the signing and delivery of the representation agreement.
 From the brokerage’s point of view, we often hear that the agreement was fully explained (in native tongue where needed), signed and initialed in an office environment, services contemplated therein subsequently provided, that the buyer breached the agreement by buying through another brokerage, thus triggering payment of the commission set out therein.
 From the buyer’s point of view we often hear that the agreement, if signed at all, was signed at the insistence of their agent late at night, without any explanation (in native tongue or otherwise), and at the time a property of interest was being brought to their attention by their agent when both representation agreement and offer to purchase were hurriedly drafted and executed.
 As to the circumstances surrounding the return of the deposit, the Defence called Mr. Sabaquat Ahmad Tamweer. He gave his evidence through an Urdu interpreter (although I doubt he needed to do so). He has been a practicing accountant in Canada since 2009. Many of his clients speak English, and his services are often delivered in English. I say this in obiter dictum, as to the need for, and use of, interpreters, particularly by Defendants. This use of interpreters has to be scrutinized, especially in those cases involving buyer representation agreements. Their use in many, not all, of these cases is tactical, and is designed to lend legitimacy to the frequently raised defence of Non Est Factum which defence I will return to below.
 Testimony from each show that the Defendant (29 years old at date of trial) arrived in Canada in 2001. His brother, Nasir (27 years old at date of trial) arrived in 2000. At the time of his dealings with Ahmad respecting the circumstances of this action, the Defendant was a Manager(emphasis added) at a McDonalds Restaurant. He had a grade 12 education from Ontario’s educational system. His brother at the same time had completed grade 9 in the same educational system.
 Both the Defendant and his brother take refuge in their “limited” language capabilities. Thus the need for an Urdu interpreter. Given the term of their Canadian residence, and in the case of the Defendant, his employment history, I find, as a fact, that they understood more than just the “big words” in the BRA when presented to them at trial. Their testimony in this respect undermines their credibility. But credibility, as stated above, is just one of the number of factors we must consider in these cases.
In this particular case, even though the Defendant Buyers pleaded “ignorance” and a lack of understanding in English such that they required interpreters at trial, the Judge just didn’t “buy it”.
These Defendants conducted their normal business in English every day of the week, but all of a sudden when they went to Court they can’t converse in English and require an interpreter. In fact, they are trying to have the interpreter assist them in their case. If they don’t speak English, then how can they understand the Buyer Representation document? It’s difficult enough to explain at the best of times.
Rightly, as the Judge points out, this undermines their credibility. This is not a good ploy or a strategic tactic. It’s foolhardy, and Judge McNulty was not convinced. Unfortunately, it has become commonplace. For other reasons, namely, the poor explanation offered by the agent, the claim for commission was denied. The old “I need an Interpreter” trick did not fool the Judge.
Going forward, there are some lessons for the real estate community.
At the very least, a real estate professional should confirm that the prospective client, about to sign a document:
1) Understands English (verbally),
2) Speaks English,
3) Reads English, and
4) Understands English (written word).
In fact, the time to ask whether the client needs an interpreter would be BEFORE they sign the document.
Sometimes, this is quite in order. An elderly individual might have rudimentary verbal skills, yet not be able to read or write at all. This type of illiteracy is common.
Sometimes, a relative, much younger (frequently a grandchild) who is in school, yet under the age of 18, might serve as the interpreter. These are all issues that should be addressed and not ignored.
The “Non Est Factum” defence (I didn’t understand the document) is likely to be used more frequently in a pluralistic society.
It’s best to be cautious.
Brian Madigan LL.B., Broker