What is the test for determining whether a discretionary condition in a contract imposes a subjective or objective standard?

Ontario, Canada


The following excerpt is from Shoker v. Orchard Garden Markets Ltd., 2007 CanLII 37897 (ON SC):

In my view, what is most significant about these cases in the context of the dispute before me, is the clear indication that it is the contract which controls the standard. As noted by Cronk J.A. at para. 19 of Marshall v. Bernard Place: “The determination of whether a discretionary condition imposes a subjective or objective standard depends upon ‘the intention of the parties as disclosed by the contract’.” At para. 18 Justice Cronk commented that in the absence of explicit language or a clear indication from the tenor of the contract to the contrary, the tendency of the cases is to require an objective standard. Other things being equal the less arbitrary standards of an objective test are to be preferred.

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