“Terms may be implied in a contract based on the presumed intention of the parties, “where the implied term is necessary to give “business efficacy” to the contract; or where the implied term otherwise meets the “officious bystander” test – that is, a term that the parties would say, if questioned, “of course”” that would be understood to be a term of the contract.”; As stated by the Ontario Court of Appeal in Rankin Construction Inc. v. Ontario, 2014 ONCA 636 at para. 29:
Terms may be implied in a contract based on: (1) custom or usage; (2) legal incidents of a class or type of contract; or (3) the presumed intention of the parties, where the term is necessary “to give business efficacy to a contract or as otherwise meeting the ‘officious bystander’ test as a term which the parties would say, if questioned, that they had obviously assumed”: Canadian Pacific Hotels Ltd. v. Bank of Montreal, 1987 CanLII 55 (SCC), [1987] 1 S.C.R. 711, at p. 775; see also M.J.B. Enterprises, at para. 27; Double N Earthmovers, at para. 30; Martel, at para. 81. Any implied terms must fit and be the necessary implication of the express terms; if there is any evidence against the proposed term, it cannot be implied: M.J.B. Enterprises, at para. 29.
Also see, Packall Packaging Inc v Ciszewski, [2016] OJ No 31 at para. 13 and Fairview Donut Inc. v. The TDL Group Corp., 2012 ONSC 1252 (CanLII), [2012] O.J. No. 834 at para. 448-459.”