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190 V O L . 7 5 P A R T 2 M A R C H 2 0 1 7 THE ADVOCATE only after the contract had been construed. This is similar to the test set out in Canada in M.J.B. Enterprises.9 When comparing the approaches taken by Lord Hoffman and Lord Neuberger, the former’s approach seems more logical because it connects the implication of a term with the overall interpretation of the contract. It is difficult to see how the issue could be approached otherwise, despite the tests set out in Marks and Spencer and M.J.B. Enterprises. It is necessary to see, firstly, whether the contract deals with the issue and then whether there is a basis to imply a term. Indeed, the focus of determining the intentions of the parties must involve an interpretation of the contract from which those intentions are inferred. SOME CASES In Canada there have been many cases10 in which the implication of a term has been considered. In the following selected sample of cases,11 after reading the facts, the implication of a term or the refusal to imply a term, seems to be both obvious and the right thing to do: M.J.B. Enterprises12 Is there an implied term that in a call for tenders the owner will only accept a compliant tender? Yes. Zeitler v. Zeitler (Estate)13 On the transfer of property as part of a matrimonial settlement should the transferring spouse be indemnified for subsequent tax liability arising from the disposition by the transferee spouse? Yes. Moulton Contracting Ltd. v. British Columbia14 On the issuing of a timber licence is there an implied term that the province has engaged in all necessary consultation with First Nations? No. G. Ford Homes Ltd. v. Draft Masonry (York) Co. Ltd.15 In a contract for the installation of spiral staircases is there an implied term the staircases would comply with the Ontario Building Code? Yes. Bank of Nova Scotia v. Horgan16 In a mortgage loan granted to an employee on favourable terms is there an implied term that the favourable terms would end on the termination of employment? Yes. Shaw Cablesystems (Manitoba) Ltd. v. Canadian Legion Memorial Housing Foundation (Manitoba)17 In a contract for the provision of bulk cable TV service at a favourable rate (which was pegged at twenty-five per cent of the rate for individual


March Pages 2017
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