collected and remitted by Automodular regardless of which type
of invoice was generated.
[7] In April 2010, GM Canada terminated its relationship with
Automodular. Unhappy with this turn of events, Automodular
issued a statement of claim naming GM Canada and GM Company
as defendants. As against the GM defendants, the claim sought
(among other things)
(a) $20 million in damages for breach of contract and unjust
enrichment as against GM Canada;
(b) the same amount as against GM Company for the tort of
inducing breach of contract;
(c) $5 million in punitive damages; and
(d) costs and interest.
[8] Subsequent to losing the GM contract, Automodular substantially wound down its business. It remained a public company
with shareholders and the litigation against GM was one of its
principal remaining assets (albeit a contingent one).
[9] The claim was scheduled for a 14-day trial before Conway J.
commencing on Tuesday, February 20, 2018. The parties reached
a settlement on Saturday, February 17, 2018 during the Family
Day long weekend. It is common ground that the terms of the set-
tlement makes no express mention of HST. The agreement was
evidenced in the following e-mail exchange:
a. Plaintiff counsel to GM counsel:
Automodular is prepared to resolve action CV-17-11686-00CL (the “Action”)
on the basis of:
1. Payment by GM to Automodular of $7 million (inclusive of interest and
costs, including disbursements);
2. The payment contemplated in (1) will be made by GM directly to Automodular via wire transfer by March 6, 2018; and
2. The parties will consent to a dismissal of the Action, with prejudice and
without costs. Automodular will take out the dismissal order following receipt
of the payment contemplated in (1).
Automodular’s agreement to the above is conditional on GM’s confirmation
of the above, including paragraph (2), by 4 p.m. today.
b. GM counsel to plaintiff counsel:
Payment date of March 6 by wire transfer confirmed, please forward wire
transfer information as soon as possible. We are settled at $7 million inclusive
of all claims made or which could have been made in the action, including
interest, costs and disbursements; you have our consent to take out the order
