Will the Court rewrite a contract because it does not say what it was meant to say?
Words in a written agreement should be given their natural meaning and should be read in the context of the entire agreement. The Court does have an equitable jurisdiction to rectify a written contract where such contract inaccurately records the terms of an agreement between the parties. It can also be utilized in rare circumstances based upon unilateral mistake. The Supreme Court of Canada recently affirmed the very strict test for rectification. In Attorney General of Canada v. Fairmont Hotels Inc.
, the Court allowed an appeal where the lower courts had exercised their jurisdiction to rectify a legal document where the effect of that document was to produce an unexpected tax result. In a seven to two decision, the Supreme Court confirmed that rectification has limited availability and must be supported by clear, convincing and cogent evidence of a sufficiently high degree to satisfy the Court that the legal agreement or document did not accurately record a party’s unilateral intention or agreement with another party and should be rectified.
You should always carefully review contracts before signing them to make sure they accurately set out what is intended.