is unreasonable and contrary to access to justice considerations.
Each of these issues is considered below.
[ 12] Rectification is an equitable doctrine that is available
when it is clear that the parties’ written agreement does not
accord with their actual agreement. In such circumstances,
a court may rectify the agreement so that it gives effect to the
parties’ true intentions: Canada (Attorney General) v. Fairmont
Hotels Inc.,  2 S.C.R. 720,  S.C.J. No. 56, 2016 SCC
56, at para. 12.
[ 13] In the present case, Manulife argued that rectification
was necessary to correct a common mistake. Such a mistake
arises where the parties “subscribe to an instrument under
a common mistake that it accurately records the terms of
their antecedent agreement” [emphasis in original]: Fairmont,
at para. 14. To obtain an order for rectification in these circumstances, Manulife was required to show “that the parties had
reached a prior agreement whose terms are definite and ascertainable; that the agreement was still effective when the instrument was executed; that the instrument fails to record accurately
that prior agreement; and that, if rectified as proposed, the
instrument would carry out the agreement”: Fairmont, at para. 14.
[ 14] On appeal, Mr. Alguire’s primary submission on this issue
is that there was an insufficient evidentiary basis at trial for
concluding that the parties had entered into an antecedent
agreement. In other words, it was not open to the trial judge
on the evidentiary record to find that the agreement was definite
and ascertainable. Accordingly, he argues that the remedy of
rectification was not available. As part of this argument,
Mr. Alguire submits that the trial judge erred in finding that
Mr. Elias acted as his agent in securing the policy.
[ 15] I am unable to give effect to this submission. In my view,
there was ample evidence to ground the trial judge’s conclusion
that there was an antecedent agreement based on the quote,
which was for the issuance of a $5 million key man insurance
policy with no special provision for inflation protection. I reach
this conclusion for the following reasons.
[ 16] First, this conclusion is consistent with Manulife’s internal files, including various documents and notations made by its
underwriting department that were based on a $5 million policy
and Mr. Alguire’s insurance application, which sought coverage
in that amount. Manulife produced its entire “application file”,