Supreme Court Rectification Decision
Rectification is an equitable doctrine that is applicable in situations where parties have agreed on terms of a contract that due to inadvertence is not reflected in their written agreement. The Ontario Court of Appeal decision in Juliar allowed for a wide application of rectification in tax cases. The Supreme Court of Canada released the decision in Canada (Attorney General) v. Fairmont Hotels Inc. in early December 2016 and tightly restricted the use of rectification in tax cases by overruling Juliar. The Supreme Court said that : "Where the error is said to result from a mistake common to both or all parties to the agreement, rectification is available upon the court being satisfied that, on a balance of probabilities, there was a prior agreement whose terms are definite and ascertainable; that the agreement was still in effect at the time the instrument was executed; that the instrument fails to accurately record the agreement; and that the instrument, if rectified, would carry out the parties’ prior agreement".
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