Facts: A contract for the sale of land described the land as ‘Subdivision 1 of Portion 1154’. The parties believed that an area of 27 acres of cultivated land was part of this subdivision. However, it was actually part of land that was being retained by the seller. Almost two years after the purchasers took possession of the land (including the 27 acres of cultivated land), a survey revealed that the 27 acres lay outside the subdivision. The purchasers, having affirmed the contract (meaning that rescission is not possible), sought an order for rectification in order to compel a transfer of the additional 27 acre parcel of land.
Held: The purchasers had not established a ‘common intention’ that the land include the 27 acres. There was no evidence to support a finding of a common intention re the boundary of the sub-division. The intention was only to effect a transfer of this sub-division. The proof that must be provided by the party seeking rectification was the intention that a further parcel of land, precisely identified, was to be included in the transfer. The threshold for evidence (“convincing proof”) is high.
Held (Wilson J at 452-3): ‘[T]he principles which govern the rectification of a contract ... [are first] [t]here need not be a concluded antecedent contract, but there must be an intention common to both parties at the time of contract to include in their bargain a term which by ... mistake is omitted therefrom. ... The second principle ... is that which requires the plaintiff to advance “convincing proof” that the written contract does not embody the final intention of the parties.’