HELD: Application granted. Rectification was intended to correct documents that erroneously failed to accurately record a clear and unequivocal agreement. The Court was satisfied that all four requirements were met here. The evidence was overwhelming that the parties had reached an agreement. Moreover, the subsequent conduct of the parties was consistent with the conclusion that they had reached an agreement. The agreement was effective when the instrument was executed. There was no doubt that the documents sought to be rectified did not accurately record the agreement between the parties, and rectification, if granted as proposed, would be such that the instruments would in fact carry out the agreement reached. The Court was satisfied that rectification was appropriate. The Court was satisfied that the parties were not seeking to change their bargain, to retroactively effect more efficient tax planning, or indeed for any other purpose. Rather, it was satisfied that the parties were seeking an order rectifying the written instruments so that they accurately recorded the agreement previously reached, which remained in effect, unamended. Finally, additional miscellaneous mistakes unrelated to most of the rectification sought, were also made in the Share Exchange Agreement and the resolution as described at paragraph 32 of the factum of the Applicants. They were substantively immaterial but, in any event, also met the test for rectification. In the result, the Share Exchange Agreement, the Resolution and the shareholders’ ledger were rectified in the form sought by the Applicants.
Sleep Country Canada Holdings Inc. v. Canada (Attorney General), [2022] O.J. No. 4746, Ontario Superior Court of Justice, P.J. Osborne J., October 25, 2022. Digest No. TLD-December192022005