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THE ADVOCATE V O L . 7 5 P A R T 2 M A R C H 2 0 1 7 193 efficacy”. It is difficult to extract from the cases any coherent objective analysis of how “business efficacy” is to be measured—other than perhaps that if the party seeking to imply the term drafted the contract and is a bigger player than the other party, the courts seem to be disinclined to help sort out the omission (as in Shaw Cablesystems, though in Bank of Nova Scotia v. Horgan,27 the B.C. Court of Appeal implied a term that upon resignation an employee was no longer entitled to a preferential interest rate on a loan). While the cases say that a term will not be implied if it would rewrite the contract, in fact many terms that are implied do effectively rewrite the contract by adding a term to which the parties did not agree and to which one of the parties objects. CONCLUSION Implying a term into a contract is a regular occurrence in the courts. The analytical framework discussed in the cases is necessary to give guidance to the process, but at the end of the day, it remains largely a subjective, qualitative process that requires a judge to attempt to apply factors which are not capable of measurement but can only be compared. The hoary old metaphor of apples and oranges is often engaged. This is why the cases are so fact dependent and after reading the particular exposition of facts put forward, the outcome seems so obvious. Had the facts been differently characterized, or the principles differently explained, the opposite result might in some cases have seemed equally obvious.28 The observations in this paper are necessarily qualitative rather than quantitative (and are not intended to be ironic). Nor are the remarks intended to suggest that judges apply personal prejudices in applying these tests. But a judge’s world view and experience will affect the assessment of facts and the seriousness of the possible consequences of the exercise of a qualitative assessment. ENDNOTES 1. I am grateful for the comments of Martin Taylor, QC, on drafts of this paper. See also Mr Taylor’s companion piece at (2016) 74 Advocate 823. 2. See British Columbia (Attorney General) v Wale, 1987 2 WWR 331 (BCCA), appeal dismissed 1991 2 WWR 568 (SCC), in which “irreparable harm” is considered an aspect of the “balance of convenience”. 3. For an interesting discussion of the proper application of judicial discretion see Tom Bingham, The Rule of Law (London: Allen Lane/Penguin, 2010), and especially chapter 4. If it were otherwise it would be through a looking glass. 4. 1999 1 SCR 619 at paras 27, 29 (underlining in original) MJB Enterprises. 5. Ibid. 6. 2009 1 WLR 1988 (PC) Belize Telecom. 7. 2015 UKSC 72 Marks & Spencer. 8. As the Privy Council and the United Kingdom Supreme Court are both the final courts of appeal for their areas of jurisdiction their authority is generally seen as being equal. This is particularly so since the composition of both bodies is essentially the same. The Supreme Court has recently discussed the issue of the treatment of decisions of the Privy Council in Willers v Joyce, 2016 UKSC 44, in which all nine judges participated (the usual quorum is five).


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