Why Courts Do Not Fix Every Poorly Drafted Bargain
April 22, 2026
BY: IAN ANDREW LAW
A dispute reaches court, and one side hopes the judge will supply the commercial common sense that the drafting failed to capture. Maybe the clause is awkward. Maybe the pricing formula works poorly. Maybe the agreement never reflected the deal one side thought it had made.
That hope is understandable. It is also dangerous. Courts interpret contracts; they do not normally rewrite them into better ones.
Key Takeaways
• Courts generally enforce the bargain the parties made, not the bargain one side now wishes had been made.
• Implying terms has limits.
• Good faith does not let a court rewrite a contract.
• Unclear drafting often creates process cost before it creates a merits answer.
• The best time to fix a bad clause is usually before the dispute.
Interpretation Is Not Reconstruction
Ontario courts work with the language the parties chose. They read the agreement as a whole, consider the objective surrounding circumstances known to both parties at the time of contracting, and try to give the bargain a commercially sensible meaning. But that interpretive exercise has boundaries. It is not a licence to replace weak drafting with better drafting.
That distinction becomes important when a clause is incomplete or when the agreement provides no workable mechanism for the relief one side now wants.
Why Judges Are Cautious About Rewriting Bargains
Commercial parties are generally free to allocate risk. If courts too readily repaired weak language after the fact, certainty would suffer. That is why implication of terms is limited and why courts are careful about inserting obligations the contract itself does not support.
Recent Ontario authority illustrates the point. Even where a court may view an adjustment as commercially sensible, it will not necessarily impose that adjustment without a contractual mechanism. The same discipline appears in cases that enforce carefully drafted exclusion or allocation clauses even when the outcome is tough for one party.
Where Good Faith Fits
Good faith may constrain how a party performs the bargain, but it does not usually give the court a warrant to create a new bargain. A court may police dishonesty, misuse of discretion, or misleading conduct. That is different from supplying substantive terms the parties did not actually agree on.
This is where businesses sometimes overread the doctrine. Good faith can matter a great deal. It is still anchored to the contract.
The Real Lesson For Businesses
A poorly drafted contract can generate years of cost before a judge finally says what it means. Sometimes the answer is favourable. Sometimes it is not. Either way, litigation is a very expensive editing process. The cleaner answer is better drafting at the front end and early, realistic review when problems first appear.
Courts can resolve ambiguity. They can also reject invitations to repair it. That is why poor drafting is often not just a legal problem, but a strategic and financial one.
Sources
• Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53.
• Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc., 2024 SCC 20.
• General Ontario common-law principles on implying terms and enforcing commercial bargains; no single Ontario statute is exclusively determinative for this article.
This article is for general information purposes only and does not constitute legal advice. Reading this article does not create a solicitor-client relationship. If you require advice specific to your situation, contact my office.