Bhasin v. Hrynew et al., (2014) 584 A.R. 6

• Judge: McLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Karakatsanis and Wagner, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 12, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 584 A.R. 6;2014 SCC 71

Bhasin v. Hrynew (2014), 584 A.R. 6; 623 W.A.C. 6 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2014] A.R. TBEd. NO.123

Harish Bhasin, carrying on business as Bhasin & Associates (appellant) v. Larry Hrynew and Heritage Education Funds Inc. (formerly known as Allianz Education Funds Inc., formerly known as Canadian American Financial Corp. (Canada) Limited)

(respondents)

(35380; 2014 SCC 71; 2014 CSC 71)

Indexed As: Bhasin v. Hrynew et al.

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Karakatsanis and Wagner, JJ.

November 13, 2014.

Summary:

Canadian American Financial Corp. (Can-Am) was in the business of selling education savings plans. To do so, it contracted with "Enrollment Directors" across the country, two of whom were Bhasin and Hrynew, a competitor of Bhasin. The term of the contract between Can-Am and Bhasin was three years. Clause 3.3 provided that the contract would automatically renew at the end of the three-year term unless one of the parties gave six months' written notice to the contrary. Can-Am gave such notice to Bhasin. Bhasin sued Can-Am and Hrynew, claiming several causes of action, including breach of contract.

The Alberta Court of Queen's Bench, in a decision reported at (2011), 526 A.R. 1, found that it was an implied term of the contract that decisions about whether to renew the contract would be made in good faith. The court held that Can-Am was in breach of the implied term of good faith, that Hrynew had intentionally induced breach of contract, and that both were liable for civil conspiracy. The court determined Bhasin's claim for loss of income and loss of his business. Can-Am and Hrynew appealed.

The Alberta Court of Appeal, in a decision reported at (2013), 544 A.R. 28; 567 W.A.C. 28, allowed the appeal and dismissed Bhasin's lawsuit. The court found his pleadings to be insufficient and held that the lower court erred by implying a term of good faith in the context of an unambiguous contract containing an entire agreement clause. Bhasin appealed.

The Supreme Court of Canada allowed the appeal with respect to Can-Am and dismissed the appeal with respect to Hrynew. The Court varied the trial judge's assessment of damages. Can-Am was liable for damages calculated on the basis of what Bhasin's economic position would have been had Can-Am fulfilled its duty. If Can-Am had performed the contract honestly, Bhasin would have been able to retain the value of his business, worth $87,000.

Contracts - Topic 2051

Terms - Implied terms - General - [See second Contracts - Topic 3502 ].

Contracts - Topic 2109

Terms - Express terms - Renewal clauses - [See fourth Contracts - Topic 3502 ].

Contracts - Topic 3502

Performance or breach - Obligation to perform - Good faith - Exercise of - The Supreme Court of Canada examined whether there was a general duty of good faith contractual performance - "Anglo-Canadian common law has resisted acknowledging any generalized and independent doctrine of good faith performance of contracts. The result is an 'unsettled and incoherent body of law' that has developed 'piecemeal' and which is 'difficult to analyze' ... This approach is out of step with the civil law of Quebec and most jurisdictions in the United States and produces results that are not consistent with the reasonable expectations of commercial parties. In my view, it is time to take two incremental steps in order to make the common law less unsettled and piecemeal, more coherent and more just. The first step is to acknowledge that good faith contractual performance is a general organizing principle of the common law of contract which underpins and informs the various rules in which the common law, in various situations and types of relationships, recognizes obligations of good faith contractual performance. The second is to recognize, as a further manifestation of this organizing principle of good faith, that there is a common law duty which applies to all contracts to act honestly in the performance of contractual obligations. In my view, taking these two steps is perfectly consistent with the Court's responsibility to make incremental changes in the common law when appropriate. Doing so will put in place a duty that is just, that accords with the reasonable expectations of commercial parties and that is sufficiently precise that it will enhance rather than detract from commercial certainty." - See paragraphs 32 to 34.

Contracts - Topic 3502

Performance or breach - Obligation to perform - Good faith - Exercise of - The Supreme Court of Canada stated that the objection to the corporate defendant's conduct in this case did not fit within any of the existing situations or relationships in which duties of good faith had been found to exist - "The key question before the Court, therefore, is whether we ought to create a new common law duty under the broad umbrella of the organizing principle of good faith performance of contracts. In my view, we should. I would hold that there is a general duty of honesty in contractual performance. This means simply that parties must not lie or otherwise knowingly mislead each other about matters directly linked to the performance of the contract. ... I am at this point concerned only with a new duty of honest performance and, as I see it, this should not be thought of as an implied term, but a general doctrine of contract law that imposes as a contractual duty a minimum standard of honest contractual performance." - See paragraphs 72 to 74.

Contracts - Topic 3502

Performance or breach - Obligation to perform - Good faith - Exercise of - The Supreme Court of Canada concluded that "at this point in the development of Canadian common law, adding a general duty of honest contractual performance is an appropriate incremental step, recognizing that the implications of the broader, organizing principle of good faith must be allowed to evolve according to the same incremental judicial approach. A summary of the principles is in order: (1) There is a general organizing principle of good faith that underlies many facets of contract law. (2) In general, the particular implications of the broad principle for particular cases are determined by resorting to the body of doctrine that has developed which gives effect to aspects of that principle in particular types of situations and relationships. (3) It is appropriate to recognize a new common law duty that applies to all contracts as a manifestation of the general organizing principle of good faith: a duty of honest performance, which requires the parties to be honest with each other in relation to the performance of their contractual obligations." - See paragraphs 92 and 93.

Contracts - Topic 3502

Performance or breach - Obligation to perform - Good faith - Exercise of - The dispute concerned the non-renewal of a contract - The trial judge accepted the plaintiff's position that there was a duty of good faith in this case and that it had been breached by the corporate defendant ("Can-Am") when it failed to act honestly in exercising the non-renewal clause - The Court of Appeal reversed and held that there had been no breach of contract - The Supreme Court of Canada allowed the appeal in part - The dishonesty on the part of Can-Am was directly and intimately connected to its performance of the agreement and its exercise of the non-renewal provision - Can-Am breached the agreement when it failed to act honestly with the plaintiff in exercising the non-renewal clause - In light of that conclusion, the Court agreed with the Court of Appeal's rejection of the claims based on the torts of inducing breach of contract and unlawful means conspiracy - The trial judge found that the defendant Hrynew did not encourage Can-Am to act dishonestly in its dealings with Bhasin and that Can-Am's dishonest conduct was not fairly attributable to Hrynew - It followed that Hrynew did not induce Can-Am's breach of its contractual duty of honest performance - The trial judge held the defendants liable for unlawful means conspiracy - In light of the Court's conclusions, the only relevant unlawful means pertained to Can-Am alone - Accordingly, there could be no liability for civil conspiracy - It followed that the claims against Hrynew were rightly dismissed - See paragraphs 94 to 107.

Contracts - Topic 7415.1

Interpretation - General principles - Good faith - [See all Contracts - Topic 3502 ].

Courts - Topic 587

Judges - Duties - To decide according to evidence and pleadings - The Supreme Court of Canada held that the trial judge did not make a reversible error by adjudicating the issue of good faith - "The allegations in the statement of claim clearly put the questions of improper purpose and dishonesty in issue. These facts are sufficient to put [the defendant's] good faith in issue. The question of whether this conduct amounted to a breach of the duty of good faith is a legal conclusion that did not need to be pleaded separately. The defendants did not move to strike the pleadings or seek particulars of the allegation of wrongful termination in the statement of claim. Good faith was a live issue that was fully canvassed in a lengthy trial ... Written submissions by both parties at trial referred to the good faith issue and even in his opening at trial, [plaintiff's] counsel raised the issue of good faith. The trial judge held that any deficiency in the pleadings did not cause prejudice to the [defendants] ... This is an assessment she was uniquely positioned to make and her conclusion ought to be treated with deference on appeal." - See paragraphs 18 to 21.

Damages - Topic 5715

Contracts - Breach of contract - Loss of business - The Supreme Court of Canada concluded that the corporate defendant's breach of contract consisted of its failure to be honest with the plaintiff about its contractual performance and, in particular, with respect to its settled intentions with respect to renewal - It was therefore liable for damages calculated on the basis of what the plaintiff's economic position would have been had the defendant fulfilled that duty - While the trial judge did not assess damages on that basis, she made findings that permitted the Court to do so - If the defendant had performed the contract honestly, the plaintiff would have been able to retain the value of his business - It was clear from the findings of the trial judge and from the record that the value of the business around the time of non-renewal was $87,000 - The plaintiff was therefore entitled to damages in that amount - See paragraphs 108 to 111.

Practice - Topic 1335

Pleadings - The issues - Issues to be raised must be pleaded - [See Courts - Topic 587 ].

Cases Noticed:

Aleyn v. Belchier (1758), 1 Eden 132; 28 E.R. 634, refd to. [para. 35].

Mills v. Mills (1938), 60 C.L.R. 150 (Aust. H.C.), refd to. [para. 35].

Mellish v. Motteux (1792), Peake 156; 170 E.R. 113, refd to. [para. 35].

Carter v. Boehm (1766), 3 Burr. 1905; 97 E.R. 1162, refd to. [para. 35].

Herbert v. Mercantile Fire Insurance Co. (1878), 43 U.C.Q.B. 384, refd to. [para. 35].

Gateway Realty Ltd. v. Arton Holdings Ltd. and LaHave Developments Ltd. (1991), 106 N.S.R.(2d) 180; 288 A.P.R. 180 (T.D.), affd. in part (1992), 112 N.S.R.(2d) 180; 307 A.P.R. 180 (C.A.), refd to. [para. 38].

McDonald's Restaurants of Canada Ltd. v. British Columbia (1997), 88 B.C.A.C. 33; 144 W.A.C. 33; 29 B.C.L.R.(3d) 303 (C.A.), refd to. [para. 38].

Crawford et al. v. Agricultural Development Board (N.B.) et al. (1997), 192 N.B.R.(2d) 68; 489 A.P.R. 68 (C.A.), refd to. [para. 38].

Transamerica Life Canada Inc. et al. v. ING Canada Inc., [2003] O.A.C. Uned. 565; 68 O.R.(3d) 457 (C.A.), refd to. [para. 39].

Mesa Operating Limited Partnership v. Amoco Canada Resources Ltd. (1994), 149 A.R. 187; 63 W.A.C. 187 (C.A.), refd to. [para. 39].

Barclays Bank plc v. Metcalfe & Mansfield Alternative Investments VII Corp. et al. (2013), 308 O.A.C. 17; 365 D.L.R.(4th) 15; 2013 ONCA 494, refd to. [para. 39].

R. v. Salituro, [1991] 3 S.C.R. 654; 131 N.R. 161; 50 O.A.C. 125, refd to. [para. 40].

Bow Valley Husky (Bermuda) Ltd. et al. v. Saint John Shipbuilding Ltd. et al., [1997] 3 S.C.R. 1210; 221 N.R. 1; 158 Nfld. & P.E.I.R. 269; 490 A.P.R. 269, refd to. [para. 40].

Watkins v. Olafson et al., [1989] 2 S.C.R. 750; 100 N.R. 161; 61 Man.R.(2d) 81, refd to. [para. 40].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 40].

Pepsi-Cola Canada Beverages (West) Ltd. v. Retail, Wholesale and Department Store Union, Local 558 et al., [2002] 1 S.C.R. 156; 280 N.R. 333; 217 Sask.R. 22; 265 W.A.C. 22; 2002 SCC 8, refd to. [para. 40].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2005] 2 S.C.R. 473; 339 N.R. 129; 218 B.C.A.C. 1; 359 W.A.C. 1; 2005 SCC 49, refd to. [para. 40].

Grant et al. v. Torstar Corp. et al., [2009] 3 S.C.R. 640; 397 N.R. 1; 258 O.A.C. 285; 2009 SCC 61, refd to. [para. 40].

Interfoto Picture Library Ltd. v. Stilletto Visual Programmes Ltd., [1989] 1 Q.B. 433 (C.A.), refd to. [para. 42].

London Drugs Ltd. v. Brassart and Vanwinkel, [1992] 3 S.C.R. 299; 143 N.R. 1; 18 B.C.A.C. 1; 31 W.A.C. 1, refd to. [para. 44].

London Drugs v. Kuehne & Nagle International Ltd. et al. - see London Drugs Ltd. v. Brassart and Vanwinkel.

Lefebvre v. HOJ Industries Ltd.; Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986; 136 N.R. 40; 53 O.A.C. 200, refd to. [para. 44].

Machtinger v. HOJ Industries Ltd. - see Lefebvre v. HOJ Industries Ltd.; Machtinger v. HOJ Industries Ltd.

Schuler AG v. Wickman Machine Tool Sales Ltd., [1974] A.C. 235 (H.L.), refd to. [para. 45].

CivicLife.com Inc. v. Canada (Attorney General) (2006), 215 O.A.C. 43 (C.A.), refd to. [para. 47].

Dynamic Transport Ltd. v. O.K. Detailing Ltd., [1978] 2 S.C.R. 1072; 20 N.R. 500; 9 A.R. 308, refd to. [para. 49].

Mitsui & Co. (Canada) Ltd. v. Royal Bank of Canada et al., [1995] 2 S.C.R. 187; 180 N.R. 161; 142 N.S.R.(2d) 1; 407 A.P.R. 1, refd to. [para. 50].

Mason v. Freedman, [1958] S.C.R. 483, refd to. [para. 51].

Keays v. Honda Canada Inc., [2008] 2 S.C.R. 362; 376 N.R. 196; 239 O.A.C. 299; 2008 SCC 39, refd to. [para. 54].

Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; 219 N.R. 161; 123 Man.R.(2d) 1; 159 W.A.C. 1, refd to. [para. 54].

Fidler v. Sun Life Assurance Co. of Canada, [2006] 2 S.C.R. 3; 350 N.R. 40; 227 B.C.A.C. 39; 374 W.A.C. 39; 2006 SCC 30, refd to. [para. 55].

702535 Ontario Inc. et al. v. Non-Marine Underwriters, Lloyd's, London et al. (2000), 130 O.A.C. 373; 184 D.L.R.(4th) 687 (C.A.), refd to. [para. 55].

Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201; 2002 SCC 18, refd to. [para. 55].

Andrusiw v. Aetna Life Insurance Co. of Canada (2001), 289 A.R. 1 (Q.B.), refd to. [para. 55].

Martel Building Ltd. v. Canada, [2000] 2 S.C.R. 860; 262 N.R. 285; 2000 SCC 60, refd to. [para. 56].

M.J.B. Enterprises Ltd. v. Defence Construction (1951) Co. et al., [1999] 1 S.C.R. 619; 237 N.R. 334; 232 A.R. 360; 195 W.A.C. 360, refd to. [para. 56].

Tercon Contractors Ltd. v. British Columbia (Minister of Transportation and Highways), [2010] 1 S.C.R. 69; 397 N.R. 331; 281 B.C.A.C. 245; 457 W.A.C. 245; 2010 SCC 4, refd to. [para. 56].

Yam Seng Pty. Ltd. v. International Trade Corp., [2013] 1 All E.R. 1321; [2013] EWHC 111 (Q.B.), refd to. [para. 57].

Mid Essex Hospital Services NHS Trust v. Compass Group UK and Ireland Ltd., [2013] EWCA Civ. 200, refd to. [para. 57].

Renard Constructions (M.E.) Pty. Ltd. v. Minister of Public Works (1992), 26 N.S.W.L.R. 234 (C.A.), refd to. [para. 58].

Burger King Corp. v. Hungry Jack's Pty. Ltd., [2001] NSWCA 187, refd to. [para. 58].

R. v. Jones (S.), [1994] 2 S.C.R. 229; 166 N.R. 321; 43 B.C.A.C. 241; 69 W.A.C. 241, refd to. [para. 64].

R. v. Hart (N.L.), [2014] 2 S.C.R. 544; 461 N.R. 1; 353 Nfld. & P.E.I.R. 222; 1099 A.P.R. 222; 2014 SCC 52, refd to. [para. 64].

Peel (Regional Municipality) v. Ontario, [1992] 3 S.C.R. 762; 144 N.R. 1; 59 O.A.C. 81, refd to. [para. 67].

Bram Enterprises Ltd. et al. v. A.I. Enterprises Ltd. et al., [2014] 1 S.C.R. 177; 453 N.R. 273; 416 N.B.R.(2d) 1; 1079 A.P.R. 1; 2014 SCC 12, refd to. [para. 70].

Bank of America Canada v. Mutual Trust Co. et al., [2002] 2 S.C.R. 601; 287 N.R. 171; 159 O.A.C. 1; 2002 SCC 43, refd to. [para. 70].

Greenberg v. Montreal Trust Co., Meffert and Melfi (1985), 9 O.A.C. 69; 50 O.R.(2d) 755 (C.A.), refd to. [para. 73].

Shelanu Inc. v. Print Three Franchising Corp. (2003), 172 O.A.C. 78; 64 O.R.(3d) 533 (C.A.), refd to. [para. 73].

GEC Marconi Systems Pty. Ltd. v. BHP Information Technology Pty. Ltd., [2003] FCA 50 (Aust.), refd to. [para. 78].

Banque de Montréal v. Leong, [1989] 3 S.C.R. 429; 100 N.R. 203; 26 Q.A.C. 20, refd to. [para. 83].

Kirke La Shelle Co. v. Armstrong Co. (1933), 263 N.Y. 79, refd to. [para. 85].

Banque Nationale du Canada v. Soucisse, Groulx and Robitaille, [1981] 2 S.C.R. 339; 43 N.R. 283, refd to. [para. 85].

Houle v. Banque Nationale du Canada, [1990] 3 S.C.R. 122; 114 N.R. 161; 35 Q.A.C. 161, refd to. [para. 85].

Banque de Montréal et autre v. Hydro-Québec et autres, [1992] 2 S.C.R. 554; 138 N.R. 185; 48 Q.A.C. 241, refd to. [para. 85].

Banque de Montréal v. Bail Ltée - see Banque de Montréal et autre v. Hydro-Québec et autres.

United Roasters Inc. v. Colgate-Palmolive Co. (1981), 649 F.2d 985 (4th Cir.), refd to. [para. 87].

Ryan v. Moore et al., [2005] 2 S.C.R. 53; 334 N.R. 355; 247 Nfld. & P.E.I.R. 286; 735 A.P.R. 286; 2005 SCC 38, refd to. [para. 88].

Maracle v. Travellers Indemnity Co. of Canada, [1991] 2 S.C.R. 50; 125 N.R. 294; 47 O.A.C. 333, refd to. [para. 88].

Parna v. G. & S. Properties Ltd., [1971] S.C.R. 306, refd to. [para. 88].

Bruno Appliance and Furniture Inc. v. Hryniak, [2014] 1 S.C.R. 126; 453 N.R. 101; 314 O.A.C. 49; 2014 SCC 8, refd to. [para. 88].

LeMesurier v. Andrus (1986), 12 O.A.C. 299; 54 O.R.(2d) 1 (C.A.), refd to. [para. 89].

Shell Oil Co. v. Marinello (1972), 294 A.2d 253 (N.J. Super Ct.), affd. (1973), 307 A.2d 598 (N.J.), refd to. [para. 91].

Atlantic Richfield Co. v. Razumic (1978), 390 A.2d 736 (Pa.), refd to. [para. 91].

Westerbeke (J.H.) Corp. v. Onan Corp. (1984), 580 F. Supp. 1173 (D. Mass.), refd to. [para. 91].

Pitney-Bowes Inc. v. Mestre (1981), 517 F. Supp. 52 (S.D. Fla.), cert. denied (1983), 464 U.S. 893, refd to. [para. 91].

Agribrands Purina Canada Inc. v. Kasamekas et al. (2011), 278 O.A.C. 363; 106 O.R.(3d) 427; 2011 ONCA 460, refd to. [para. 106].

Authors and Works Noticed:

Baudouin, Jean-Louis, and Jobin, Pierre-Gabrie, Les obligations (7th Ed. 2013), para. 132 [para. 83].

Beale, Hugh, and Dugdale, Tony, Contracts Between Businessmen: Planning and the Use of Contractual Remedies (1975), 2 Brit. J. Law & Soc. 45, pp. 47 to 48 [para. 61].

Belobaba, Edward P., Good Faith in Canadian Contract Law, in Special Lectures of the Law Society of Upper Canada 1985 - Commercial Law: Recent Developments and Emerging Trends (1985), generally [paras. 59, 73, 89]; pp. 75 [para. 36]; 75 to 76 [para. 42]; 86 [para. 43].

Bridge, Michael G., Does Anglo-Canadian Contract Law Need a Doctrine of Good Faith? (1984), 9 Can. Bus. L.J. 385, generally [paras. 59, 79].

Burton, Steven J., Breach of Contract and the Common Law Duty to Perform in Good Faith (1980), 94 Harv. L. Rev. 369, generally [para. 47].

Campbell, David, Good Faith and the Ubiquity of the "Relational Contract" (2014), 77 Mod. L. Rev. 475, generally [para. 57].

Cheshire and Fifoot, Law of Contract (9th Aust. Ed. 2008), pp. 10.43 to 10.47 [para. 58].

Chitty on Contracts (31st Ed. 2012), paras. 1-039 [paras. 36, 57]; 1-050 [para. 45]; 1-051 [para. 44].

Clark, Don, Some Recent Developments in the Canadian Law of Contracts (1993), 14 Adv. Q. 435, p. 436, 440 [para. 59].

Dixon, Bill, Common Law Obligations of Good Faith in Australian Commercial Contracts - A Relational Recipe (2005), 33 A.B.L.R. 87, generally [para. 69].

Dworkin, R.M., Is Law a System of Rules? in The Philosophy of Law (1977), p. 47 [para. 64].

Farnsworth, E. Allan, Good Faith Performance and Commercial Reasonableness Under the Uniform Commercial Code (1963), 30 U. Chicago L. Rev. 666, pp. 673 [para. 61]; 677 to 678 [para. 76].

Fridman, Gerald Henry Louis, The Law of Contract in Canada (6th Ed. 2011), pp. 329 to 330 [para. 43].

Goldwasser, Vivien, and Ciro, Tony, Standards of Behaviour in Commercial Contracting (2002), 30 A.B.L.R. 369, pp. 372 to 377 [para. 61].

Grover, Warren, A Solicitor Looks at Good Faith in Commercial Transactions, in Special Lectures of the Law Society of Upper Canada 1985 - Commercial Law: Recent Developments and Emerging Trends (1985), pp. 106 to 107 [para. 80].

Hall, Geoff R., Canadian Contractual Interpretation Law (2nd Ed. 2012), pp. 338 to 346 [para. 39]; 347 [para. 45].

Macaulay, Stewart, An Empirical View of Contract, [1985] Wis. L. Rev. 465, generally [para. 61].

Macaulay, Stewart, Non-contractual Relations in Business: A Preliminary Study (1963), 28 Am. Soc. Rev. 55, p. 58 [para. 61].

MacDougall, Bruce, Estoppel (2012), pp. 142 to 144 [para. 88].

Mason, Anthony, Contract, Good Faith and Equitable Standards in Fair Dealing (2000), 116 Law Q. Rev. 66, p. 76 [para. 58].

McCamus, John D., The Law of Contracts (2nd Ed. 2012), pp. 835 to 838 [para. 42]; 835 to 868, 840 to 856 [para. 47]; 865 to 866 [para. 48].

McKendrick Ewan, Contract Law (9th Ed. 2011), pp. 221 to 222 [para. 57].

McNeely, Anne C., Canadian Law of Competitive Bidding and Procurement (2010), pp. 245 to 254 [para. 56].

Miller, Alan D., and Perry, Ronen, Good Faith Performance (2013), 98 Iowa L. Rev. 689, pp. 719 to 720 [para. 84].

O'Byrne, Shannon Kathleen, Good Faith in Contractual Performance: Recent Developments (1995), 74 Can. Bar Rev. 70, pp. 71 [para. 46]; 78 [para. 73]; 95 [paras. 59, 76]; 96 [para. 78].

O'Byrne, Shannon Kathleen, The Implied Term of Good Faith and Fair Dealing: Recent Developments (2007), 86 Can. Bar Rev. 193, pp. 196 to 204 [para. 47].

O'Connor, J.F., Good Faith in English Law (1990), pp. 17 to 49 [para. 42].

Ontario, Law Reform Commission, Report on Amendment of the Law of Contract (1987), pp. 165 [para. 42]; 169 [para. 32].

Peden, Elisabeth, Good Faith in the Performance of Contract Law (2004), 42:9 L.S.J. 64, p. 64 [para. 58].

Peden, Elisabeth, When Common Law Trumps Equity: The Rise of Good Faith and Reasonableness and the Demise of Unconscionability (2005), 21 J.C.L. 226, generally [paras. 43, 79].

Pineau, Jean, La discrétion judiciaire a-t-elle fait des ravages en matière contractuelle?, in La réforme du Code civil, cinq ans plus tard (1998), p. 141 [para. 85].

Powell, Raphael, Good Faith in Contracts (1956), 9 Curr. Legal Probs. 16, generally [para. 35].

Reiter, B.J., Good Faith in Contracts (1983), 17 Val. U.L. Rev. 705, pp. 711 to 712 [para. 59].

Steyn, Johan, Contract Law: Fulfilling the Reasonable Expectations of Honest Men (1997), 113 Law Q. Rev. 433, generally [para. 42].

Summers, Robert S., "Good Faith" in General Contract Law and the Sales Provisions of the Uniform Commercial Code (1968), 54 Va. L. Rev. 195, generally [para. 147]; p. 206 [paras. 84, 89].

Swan, Angela, and Adamski, Jakub, Canadian Contract Law (3rd Ed. 2012), §§ 1.24 [paras. 60, 69]; 8.134 to 8.146 [para. 45]; 8.135 [para. 73].

Swan, John, Whither Contracts: A Retrospective and Prospective Overview, in Special Lectures of the Law Society of Upper Canada 1984 - Law in Transition: Contracts (1984), p. 148 [para. 36].

Waddams, Stephen M., Good Faith, Unconscionability and Reasonable Expectations (1995), 9 J.C.L. 55, generally [para. 43].

Waddams, Stephen M., The Law of Contracts (6th Ed. 2010), paras. 195 to 203 [para. 88]; 494 to 508 [para. 47]; 499 to 506 [para. 44]; 550 [para. 42].

Yee, Woo Pei, Protecting Parties' Reasonable Expectations: A General Principle of Good Faith (2001), 1 O.U.C.L.J. 195, p. 195 [para. 36].

Counsel:

Neil Finkelstein, Brandon Kain, John McCamus and Stephen Moreau, for the appellant;

Eli S. Lederman, Jon Laxer and Constanza Pauchulo, for the respondents.

Solicitors of Record:

McCarthy Tétrault, Toronto, Ontario, for the appellant;

Lenczner Slaght Royce Smith Griffin, Toronto, Ontario, for the respondents.

This appeal was heard on February 12, 2014, before McLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Karakatsanis and Wagner, JJ., of the Supreme Court of Canada. The following judgment of the Court was delivered by Cromwell, J., on November 13, 2014.