a fact that figured prominently in the reasons given by Farley J.
for approving it. The issue of GST did not arise until afterwards
when CRA assessed Ravelston under s. 182 of the ETA. Cumming J. noted that the contractual termination fee was in reality
part of the consideration for the supply of management services
in the circumstances of that contract. Without the addition of
GST, the settlement was materially different from that represented by both parties to the court when approval was obtained.
The implied term was thus necessary to give effect to the objective common intention of both sides.
 Ravelston was applied by Wilton-Siegel J. in 75 Eglinton
Avenue East Limited Partnership v. 222485 Ontario Inc.;
TravelBrands Inc. (Re),  O.J. No. 2812, 2017 ONSC 3161
(S.C.J.). In TravelBrands, the tenant in CCAA proceedings had
repudiated a lease and a settlement was negotiated of the landlord’s claim. The settlement agreement included a formula to cap
the settlement payments at the point where a combination of
future rent and sale proceeds made the landlord whole. Failure to
add HST to the settlement payments made would cause the
make-whole provision to fail in accomplishing that mutually
intended task. There was evidence that the payer under the settlement agreement had in fact included HST in the first two periodic payments made. Wilton-Siegel J. found that failing to imply
a term regarding payment of HST would have undermined the
business efficacy of the make-whole provision the parties had
negotiated and therefore would frustrate the objective reasonable
expectations of both parties.
 In the present case, there is no fixed contractual termination fee nor was the settlement intended to represent any particular ratio of any amount from which the intention of the parties in
relation to HST might be inferred. There is no provision of the
agreement whose operation assumed a certain state of affairs in
relation to HST that would be frustrated. The settlement agreement was a simple, lump sum affair sweeping in the meritorious
and meritless claims alike.
 I consider the following factors to be the most material to
the question of whether it is reasonable to imply a term into the
settlement agreement that the defendants must pay HST over
and above the agreed sum:
(a) the parties were bargaining at arm’s length and both were
(b) the language they used to express their settlement was clear
and not ambiguous — it is quite indistinguishable from the
language used by lawyers to reach thousands of settlements