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Lamont, blue-pencil severance is "effected when the part severed can be removed by running a blue pencil through it." Bastarache J.
Under the blue-pencil test, severance is only possible if the judge can strike out, by drawing a line through, the portion of the contract they want to remove, leaving the portions that are not tainted by illegality, without affecting the meaning of the part remaining.
Blue-pencil severance is reserved for rare cases where the text removed is clearly severable, trivial, and not part of the main purpose of the contract.
The blue coloured test was applied in 2009 in Shafron v KRG Insurance Brokers where the question was whether the court should sever text in a restrictive covenant to resolve ambiguity around the precise meaning and boundaries of the "Metropolitan City of Vancouver." The Court concluded that blue-pencil severance could not be applied to change the ambiguous wording because it was not a mere trivial part of the covenant agreed upon by the two parties.
It is true that the New York Court of Appeals blue-penciled the protective covenant in BDO Seidman and that, more recently, another appellate court blue-penciled an overly broad covenant entered into between accounting firm Weiser LLP and its partners (Weiser LLP, p.
"[Light] spotlights many instances in which Woolf drafted portraits of working women as part of her overall attempt to depict life more comprehensively than her literary forebears, but blue-penciled them out of the final versions because (Light persuasively speculates) she knew she could not truthfully enter the lives of people whose experiences were so different from hers.
Map, meanwhile, was an example of the blue-penciled, paint-by-number-style drawings Alvarez has been making for some time.
A good copyeditor could have blue-penciled such phrases as "pesky General Grant" (64), "butternut horde" (83), "steamrolling blue avalanche" (85), "onrushing blue tide" (87), "outnumbered ghosts in gray" (101), and the many, many others like them into the oblivion they deserve.
The original manuscript of Henry Luce's "American Century" speech alone must be worth millions; and Time copy blue-penciled by Whittaker Chambers, with his careful interpolations of the worldwide Communist conspiracy, also would bring a tidy sum.