In 2016, the Supreme Court of Canada affirmed in Canada (AG)
v. Fairmont Hotels 2016 sec 56, that contractual rectification
is available to correct written contracts which inaccurately record
the parties' bargain.
Rectification is limited. It can only be used to amend the
written instrument based on the agreement the parties have already
reached and cannot be employed to undo the unanticipated effects of
that agreement.
A recent decision of the Ontario Court of Appeal, 2484234
Ontario Inc. v. Hanley Park Developments Inc. 2020 ONCA 273,
brings into sharp relief one of the most overlooked factors
involved in the rectification analysis - the business reality in
which the agreement was reached.
