Rectification

• Author: Jeffrey Berryman
• Profession: Professor of Law. Faculty of Law University of Windsor
• Pages: 332-336

CHAPTER

19

RECTIFICATION

A.

INTRODUCTION

The

equitable remedy

of

rectification

is one of

great antiquity:

it

pro-

vides

for the

correction

of

documents that,

until

corrected, inaccurately

record

the

intention

of the

parties. Although

it is

common

to

find

the

remedy included with

the law of

mistake, rectification only corrects

errors

in

recording

the

intentions

of the

parties.

It

does

not

correct

or

provide relief

for

mistakes

in

subject matter

or

terms

of a

contract.

Where

the

parties

agree that they have inaccurately recorded

their

agreement,

you

would expect that they would agree

to

voluntarily cor-

rect

the

document.

But

because

one

party

has a

vested interest

in

resist-

ing

such

a

correction, these cases

are

continually litigated.

The

party

pleading rectification

may be

trying

to

escape

a

bargain made improvi-

dent through

a

change

of

circumstances

and

will argue that

the

docu-

ment does

not

record

the

parties' agreement.

The

opposing party will

argue that

it

does,

and

that

the

other party

is

labouring under mistake.

Adding

further

confusion

is the

fact

that Canadian courts have

been opposed

to

allowing

parol

evidence

to

either alter, vary,

or

con-

tradict

a

written

contract.1

A

plea

of

rectification provides

an

exception

to the

parol evidence rule. Even

if the

plea

is

unsuccessful

the

proba-

tive

value

of the now

admitted evidence

may

have

a

bearing

on the

1 See

Hmvrish

v.

Bank

of

Montreal,

[1969]

S.C.R.

515.

332