[32] I agree with this clear and careful analysis and conclusion. Importantly, and at a minimum, the motion judge’s analysis and conclusion are far removed from being a palpable and overriding error. Indeed, the motion judge’s interpretation is the only interpretation consistent with what the leading scholar on guarantees describes as the Fair Protection Rule:
As a general principle, the courts always interpret a guarantee so that the protection or security which it affords to a creditor is rendered real rather than illusory. Alternatively stated, guarantees are read so as to give effect to the apparent intent of the parties, so as to afford fair protection to creditor in accordance with that apparent intent. This rule should be stated as the most basic principle of guarantee interpretation because it is clearly necessary to give a guarantee instrument an interpretation which is fully consistent with its apparent purpose.
See Kevin McGuinness, The Law of Guarantee, 3rd ed. (Toronto: Lexis Nexis Canada, 2013), at pp. 281-82.
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