Rectification

• Author: Jeffrey Berryman
• Pages: 500-512

500

CH AP TE R 19

RECTIFICATION

A. INT RODUCTION

The equitable remedy of rectif‌ication is one of great antiquity: it pro-

vides for the correction of documents th at, until corrected, inaccur-

ately 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 ter ms of a

contract. Where the parties agree that they have inaccurately recorded

their agreement, you would expect that t hey would agree to voluntarily

correct the document. But because one part y has a vested interest in

resisting such a correct ion, these cases are continually litigated. The

party pleading rect if‌ication may be trying to e scape a bargain made

improvident through a change of circumst ances and will argue that

the document does not record the parties’ ag reement. The opposing

party wi ll argue that it does, and that the other part y is labouring under

mistake.

Adding further conf usion is the fact that Canadian cour ts have

been opposed to allowing pa rol evidence to either alter, vary, or contra-

dict a written contract.1 A plea of rectif‌icat ion provides an exception to

the parol evidence rule. Even if the plea is unsuccessful, the probative

value of the now admitted evidence may have a bea ring on the other

1 See Haw rish v. Bank of Montreal, [1969] S.C .R. 515.