Rectification

A concept in law that is (fortunately) uncommon to most, is that of rectification.

Rectification is exactly what it sounds like. When parties have agreed to terms and have mutually settled their differences, they construct a contract agreement that conveys those terms. However, as infrequent as it may seem, errors and omissions do occur from time to time. The concept of rectification is present when one party argues that an error in the agreement was overseen, and the oversight is not what he/she had intended to agree upon.

In Sylvan Lake Golf & Tennis Club Ltd v. Performance Industries Ltd., the leading case on the issue of rectification, Justice Stewart outlines the legal test that should be used when adjudicating such an issue. Justice Stewart reasons that:

“. . .  If the other party ought to have known, that is sufficient. When the mistake was of such a character or in such circumstances that the defendant had good reason to know, or ought to have known, of the mistake and what was actually intended, this condition is satisfied.

Even in the context of a unilateral mistake, when assessing whether a party knew or ought to have known of the other party's mistake, the inquiry is an objective one. The question is what a reasonable observer would have thought in the circumstances, taking into consideration the evidence of the parties and the documentary evidence.”

It is advisable to retain a lawyer to draft your Separation Agreement to attempt to ensure that no issues (such as rectification) arise in your matter.