In recent years the Supreme Court of Canada appears to have
taken a renewed interest in commercial and contract law cases. In
some recent decisions, Canada (Attorney General) vs. Fairmont
Hotels Inc., 2016 SCC 56 (36606) and Jean Coutu Group
(PJC) Inc. v. Canada (Attorney General), 2016 SCC 55 (36505),
the Supreme Court considered the conditions under which a Court may
exercise its jurisdiction to rectify a contractual agreement or
other written legal instrument.
In Fairmont Hotels, a taxpayer sought to rectify legal
instruments recording a complex financing arrangement made years
earlier. The parties had intended the arrangement, both at its
inception and thereafter, to operate on a tax neutral basis.
However, because of the particular financing mechanism chosen, an
unanticipated tax liability was incurred years later. Both the
motions judge and Court of Appeal for Ontario agreed it was a
proper case for rectification on the grounds that the parties
intended tax
