What is the test for rectification of a contract where the contract is signed under seal?
British Columbia, Canada
The following excerpt is from Heard v. Fowlds, 1998 CanLII 5395 (BC SC):
It is clear that the mere passage of time between entering into the agreement alleged to be the result of mistake, and a claim for rectification, is no bar to relief. See Hart v. Boutilier, (1916) 1916 CanLII 631 (SCC), 56 D.L.R. 620 (S.C.C.). However, it is also clear that a remedy like rectification will only be granted where evidence of a mutual mistake is compelling. In Hart, cited above, at pages 621 and 622, the court said: We should not make a new contract except we are absolutely certain that in so doing we are rectifying a mistake and giving effect to the clearly proven intention of the parties. They have chosen to make a solemn contract under seal and we must not substitute another for it except upon evidence which is reasonably free from doubt. Rectification can be granted only if the mistake is mutual and the evidence of the mutual mistake is clear and unambiguous.
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