Canadian Courts have always had the power to correct mistakes in
commercial contracts. The Supreme Court of Canada, in its 2016
decision Canada (AG) v. Fairmont Hotels, 2016 SCC 56,
affirmed that the doctrine of rectification is available to amend
contracts that inaccurately record the parties'
bargain.
Rectification, however, is a limited remedy. It may only be used
to amend the written instrument based on the agreement the parties
have already reached. It cannot be employed to undo the
unanticipated effects of that contract, after it is concluded.
This then leads to the inevitable question: what considerations
are at play when a Court decides whether or not to modify a written
instrument?
