“A contractual term may be implied on the basis of the presumed intention of the parties where it meets the “officious bystander” test. The test is set out as follows in Energy Fundamentals Group Inc. v. Veresen, 2015 ONCA 514, at para. 31, quoting from Shirlaw v. Southern Foundries (1926) Ltd., [1939] 2 K.B. 206 at 227, [1939] 2 All E.R. 113 at 124 (C.A.):
Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying. Thus, if while the parties were making their bargain, an officious bystander were to suggest some express provision for it in their agreement, they would testily suppress him with a common: “Oh, of course.”
Implication of a contractual term does not require a finding that a party actually thought about it or expressly agreed to it. Often terms are implied to fill gaps to which the parties did not turn their minds: Energy Fundamentals, at para. 35. On the other hand, a court will not imply a term that contradicts the express language of the contract or is unreasonable: Energy Fundamentals, at para. 36. The analysis of whether to imply a term must be done on an objective basis but having regard to the specific parties and specific contractual context: Energy Fundamentals, at para. 38. See also Banerjee v. Mathoo, 2021 ONCA 140, in which the officious bystander test was applied in the family context.”