Supplementary Reasons for Judgment

COURT FILE NO.: CV-10-409280 DATE: 20170223 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ARIF HAYAT Plaintiff – and – MUSHTAQ RAJA, MARYAT INVESTMENTS INC., MINAJ TRANSPORT INC., MUNAZA RAJA, JANISH RAJA and DIRECT EX LOGISTICS INC. Defendants

Counsel: Ron Sleightholm, for the Plaintiff Areesha Raja, for the Defendants other than Maryat Investments Inc. Gordhan Ambwani, for the Defendant Maryat Investments Inc.

AND BETWEEN:

MUSHTAQ RAJA, MARYAT INVESTMENTS INC. and MINAJ TRANSPORT INC., Plaintiffs by Counterclaim – and – ARIF HAYAT Defendant to the Counterclaim

HEARD at Toronto: by written submissions

STINSON J.

[1] These Supplementary Reasons for Judgment deal exclusively with the cross-claim of Maryat against Raja for indemnity with respect to Hayat's claim. No other aspects of my Reasons for Judgment released November 7, 2016 are affected or altered by these supplementary reasons.

[2] In paragraph 151 of my Reasons for Judgment, I address the cross-claim of Maryat. I noted that no specific facts had been pleaded to support such a claim and that, based on the submissions to that point, I saw no basis for granting relief in favour of Maryat on the cross-claim. I did, however, leave it open for Maryat to seek to make such further submissions as might be appropriate in relation to the subject.

[3] Such a request was forthcoming from counsel for Maryat. I subsequently received written submissions addressing this topic on behalf of Maryat, on behalf of Raja and the other defendants, and on behalf of the plaintiff.

[4] Maryat's submissions recite the history of the transaction by which Raja sold the shares of Maryat. The submissions also reference the representations and warranties provided by Raja, both at the time the agreement of purchase and sale was signed and at the time of closing. In those representations and warranties, Raja asserted that there was no pending litigation involving Maryat. Raja further provided an indemnity to protect the purchaser from any losses or claims arising from any breach of the warranties and representations.

[5] The problem with Maryat relying on these documents is that these warranties and the indemnity were provided by Raja as vendor in favour of the purchaser of the shares, PB 10 Investments Ltd. The warranties and the indemnity were neither provided on behalf of Maryat nor were they in favour of Maryat. They were personal obligations undertaken by Raja in favour of the purchaser, PB 10.

[6] As I noted in my reasons for judgment, PB 10 is not a party to this litigation. As such, the obligations undertaken by Raja in favour of PB 10 cannot be enforced in this litigation. To the extent PB 10 may be entitled to relief as against Raja, that remedy would need to be pursued in other litigation.

[7] Accordingly, having received and considered the additional submissions of the parties regarding the Maryat cross-claim against Raja, I see no basis for granting that relief. The cross-claim is therefore dismissed.

[8] In relation to costs of the proceedings, I direct the parties to comply with paragraph 153 of my Reasons for Judgment released November 7, 2016, commencing 30 days from the release of these supplementary reasons.

Stinson J.

Released: February 23, 2017