“Mr. Carducci submits there was a “fundamental mistake”, a “mutual mistake”, a lack of “ad idem”, “hence there is no contract”. Here, Mr. Carducci seeks to rely on equity to advance its position to set aside the Life Insurance provision in the Minutes of Settlement and grant Mr. Carducci ½ of the Life Insurance proceeds. As stated above, the court should be extremely reluctant to set aside one paragraph of the Minutes of Settlement. Particularly, where many of the other terms have already been complied with.
On the issue of unilateral mistake, the Court of Appeal in Deschenes stated:
[32] As noted by Côté J.A. in Radhakrishnan, a settlement agreement may also be rescinded on the basis of unilateral mistake. I will explain why I reject the appellants’ submission that the motion judge, after finding a “unilateral mistake by the Diocese”, erred in this case in rescinding the settlement agreement on this basis. The law on rescission for unilateral mistake is that a party may seek rescission of a contract for its own unilateral mistake only where the mistake goes to a material term of the contract, where the other party knows or ought to know of the mistake, and where it would be unconscionable for the second contracting party to rely on the contract: 256593 B.C. Ltd. v. 456795 B.C. Ltd. (1999), 1999 BCCA 137 (CanLII), 171 D.L.R. (4th) 470 (B.C.C.A.), at p. 479. See also Gerald H. Fridman, The Law of Contract in Canada, 6th ed. (Toronto: Thomson Reuters Canada Limited, 2011), at pp. 252-54; Toronto Transit Commission v. Gottardo Construction Limited et al. (2005), 2005 CanLII 31293 (ON CA), 257 D.L.R. (4th) 539 (Ont. C.A.), at para. 30, leave to appeal refused, [2005] S.C.C.A. No. 491….
First, I am not persuaded that Mr. Carducci has established a “mistake” in law. In my view, this is a situation where a party now realizes they made a bad deal (at least on one term) and now wants the court to intervene. In any event, this was a unilateral mistake. I reject Mr. Carducci’s submission that he “did not have all of the details and amounts of the Life Insurance available”. Mr. Carducci was also a policy holder and could easily have ascertained the cash surrender value and the state of the unpaid premiums. I reject Mr. Carducci’s submission that if all the details and the amounts of the Life Insurance policy were known at the time of the negotiations of the Minutes of Settlement, that it “would have resulted in a different agreement”. That is hindsight and not a legal basis to overturn a term of an agreement.
Second, for there to be a mutual mistake after the execution of an agreement, there must be evidence that establishes objectively, a mistake was made by both parties. Then, the court has the jurisdiction to set aside the agreement. While, the term “mutual mistake” is loosely used by Mr. Carducci’s counsel, there is no evidence that Mrs. Carducci was subject to the same alleged mistake.”