To respond to Jack’s last comment, this is a good point – the majority does not refer explicitly to the CCQ until that portion of its reasons. But frankly, I think this makes the approach taken here worse, and certainly less transparent. For example:

[93] Second, as discussed above, the content of the duty is guided by the will of the parties as expressed in their contract. Rather than interfering with the objectives of the contracting parties or imposing duties on them beyond their reasonable contemplation, this duty merely requires that parties operate within the scope of discretion defined by their own purposes for which they freely negotiated its grant. Holding the parties to this standard will generally be consistent with, not an unanticipated departure from, their freely negotiated bargain. Recognizing a general duty of contract law here will therefore interfere very little with that freedom.

I am not sure how you reconcile this with the common law’s objective theory of contract formation (which the SCC confirmed quite recently in Crystal Square, btw). But if we’re dealing with Quebec civil law, this generally makes sense as an approach – and indeed appears to be pretty textbook, even if I might quibble with some of the details.

Best,

Stéphane

From: Jack Enman-Beech <jenmanbeech@gmail.com>
Sent: February 7, 2021 11:51 AM
Cc: Obligations <obligations@uwo.ca>
Subject: Re: SCC on good faith exercise of contractual discretion

Attention : courriel externe | external email

Lest casual readers get the wrong idea, the majority only cites the Quebec Civil Code in three paragraphs at the end of their argument in order to dismiss a certain line of argument from the parties. They write, "There is, of course, no question of applying Quebec law to this dispute". Of course, it is possible for an inquisitive mind to find affinities with the CCQ throughout the decision. Whether this amounts to what Professor Serafin calls "draw[ing] heavily on the CCQ" is matter of interpretation.

We can interpret Wastech as either setting out a common law good faith (with civilian influences) or an inappropriately civilian good faith, basically applying the CCQ in BC. I do not think the first option is too difficult to perform, and if we want to stop future litigants from "asking the courts to apply the CCQ to fix their problems" it seems likely to be more productive. This is why I called the concurrence's concerns about majority "reliance" on the CCQ minor.

Yours truly &c.,

John Enman-Beech

SJD Candidate, University of Toronto Faculty of Law

From:	Stéphane Sérafin <Stephane.Serafin@uottawa.ca>
To:	Jack Enman-Beech <jenmanbeech@gmail.com>
Date:	07/02/2021 17:08:02
Subject:	RE: SCC on good faith exercise of contractual discretion