McLean v. McLean

McLean v. McLean

Apply the ordinary civil standard of proof (balance of probabilities) and an objective reasonable-bystander approach to ascertain whether the totality of documentary and oral evidence shows a common continuing intention; on that standard the evidence established the parties intended the real property consideration to be $337,444 and that drafting errors omitted $115,000, therefore rectification of the memorandum, related Schedule E and Land Titles entries must be granted to prevent unjust enrichment.

Citation
2013 ONCA 788
Parties
Appellant; Plaintiff (in Her Personal Capacity and as Executrix of the Estate of Wilmur Russell Mc Lean, Deceased): Helen Gertrude McLean; Respondent; Defendant: Melville Kenneth McLean; Respondent; Defendant; Plaintiff by Counterclaim: Maureen Holly McLean; Defendant by Counterclaim: Trudy McLean
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
27 December 2013
Procedural Posture
Civil / Appeal From Superior Court of Justice Judgment to Court of Appeal (decision on Appeal)
Outcome
Appeal allowed in part; trial judge's decision refusing rectification set aside and rectification granted
Legal Topics
Rectification, Vendor Take Back Mortgage, Common Mistake, Standard of Proof in Civil Cases, Unjust Enrichment, Land Titles Registration
Source Language
English
Equity Property Law Real Property Contract Law Land Titles Law Rectification Vendor Take Back Mortgage Common Mistake +3 more

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Parties

Helen Gertrude McLean

Appellant; Plaintiff (in Her Personal Capacity and as Executrix of the Estate of Wilmur Russell Mc Lean, Deceased)

Melville Kenneth McLean

Respondent; Defendant

Maureen Holly McLean

Respondent; Defendant; Plaintiff by Counterclaim

Trudy McLean

Defendant by Counterclaim

Procedural Posture

Civil / Appeal From Superior Court of Justice Judgment to Court of Appeal (decision on Appeal)

Legal Issues

  1. 1 Whether the memorandum of agreement and Land Titles entries should be rectified to reflect the parties' true agreement
  2. 2 What standard of proof applies to rectification claims
  3. 3 Whether the parties had a common continuing intention as to the purchase price of the farm business

Ratio Decidendi

Apply the ordinary civil standard of proof (balance of probabilities) and an objective reasonable-bystander approach to ascertain whether the totality of documentary and oral evidence shows a common continuing intention; on that standard the evidence established the parties intended the real property consideration to be $337,444 and that drafting errors omitted $115,000, therefore rectification of the memorandum, related Schedule E and Land Titles entries must be granted to prevent unjust enrichment.

Court Disposition

Appeal allowed in part; trial judge's decision refusing rectification set aside and rectification granted

Orders

  • Set aside paragraphs 1, 2(a) and 7(a) of the trial judge's order
  • Rectify the memorandum of agreement by changing paragraph 3(v) mortgage amount from $222,444 to $337,444