Good Luck Rectifying Your Trust Deed

The recent decision of the Ontario Superior Court in Kanji v. AGreminds us that it is not easy to rectify a contract or a trust. Rectification is a legal remedy whereby, with the benefit of hindsight, the Court orders the revision of the contract or trust back to the time when the document was first executed – nunc pro tunc. If there is one certainty in the world it is that mistakes will be made by humans, including lawyers, in the drafting of documents and there will be no end to rectification applications before judges. The message of the Court in the recent case is loud and clear. The Court in Ontario and throughout Canada will continue to discourage incompetence, whether by the parties or their counsel, and will not lightly entertain applications for rectification. The application will only be granted upon submission of strong and un-contradicted evidence that the intention of the document is at complete odds with wording of the document itself. If there is any ambiguity in the evidence about intention, the Court will refuse the application and the losing applicant will pay costs. The applicant in Kanji v. AG suffered the double disadvantage of attempting to rectify an old trust deed (as opposed to a contract) while pitted against CRA. In effect, the taxpayer sought relief for his lawyer’s mistakes and serious tax consequences were in the balance. For these reasons, the Court refused to take even judicial notice of the well-known intention of parties to settle trusts for the purpose of deferring tax liabilities. The 21-year anniversary was approaching whereby an automatic disposition of all of the trust assets would be deemed to occur under theIncome Tax Act, thus creating a substantial capital gain – the very thing that was sought to be avoided. Interestingly enough, the main witness, the lawyer, did not give any evidence. The author takes the moral of the case to be that, for any substantial trust, the advice should be sought not only from lawyers but skilled tax accountants to ensure compliance with all applicable legislation. Our firm has for many years drafted contracts and trust deeds in consultation with tax experts. We know from experience that trust deeds containing extensive preambles spelling out the intentions of the settlor may prove invaluable in the years to come both on matters of interpretation and (if worse comes to worse) on a rectification application to the Court. Otherwise, good luck.