In reasons released August 6, 2010, the Ontario Court of Appeal held the trial judge’s order that wording in a clause of a written contract reflected a mutual mistake and that rectification was the appropriate remedy.
The court upheld the trial judge’s finding that the parties intentions were not captured in the written contract and that notwithstanding the Appellant’s efforts to rely on the clause, its “failure to produce the relevant document must give rise to a negative inference that the documents in question do not support [the Appellant’s] position”.
The court held that the case of Sylvan Lake Golf & Tennis Club Ltd. v. Performance Industries Ltd., [2002] 1 S.C.R. 678 was properly followed by the trial judge in that equitable remedy of rectification was appropriate in the circumstances since the trial judge “satisfied himself as to what the common intention was and rectified the clause so that it reflected the parties’ original bargain” and in doing so, “[h]e did not engage in speculation about what the original bargain might have been nor did he attempt to rectify a bad bargain.”
Citation: The British Society of Audiology v. B.C. Decker Inc., 2010 ONCA 543
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