



COURT OF APPEAL FOR ONTARIO

CITATION: Ligaj v. Ismail, 2018 ONCA 271

DATE: 20180320

DOCKET: C63685

Simmons and Pepall JJ.A. and Fragomeni J. (
ad
    hoc
)

BETWEEN

Michelle Ligaj and Stanislaw Ligaj

Plaintiffs

and

Nihad
    Ismail, Sherif Ismail

and CUMIS General
    Insurance Company

Defendants

(CUMIS General
    Insurance Company as Appellant)

(Sherif Ismail as
    Respondent)

Bruce A. Cook and Rachel Runge, for CUMIS General
    Insurance Company

Arthur R. Camporese and Steven Coons, for Sherif Ismail

Heard: March 15, 2018

On appeal from the judgment of Justice Jane A. Milanetti of
    the Superior Court of Justice, dated April 3, 2017.

REASONS FOR DECISION

[1]

Following the first phase of a bifurcated trial, the trial judge
    concluded that Nihad Ismail drove the vehicle of his father Sherif Ismail
    without consent, either express or implied. The trial judge also found that, if
    it exists in Ontario, the appellant, CUMIS General Insurance Company, failed to
    prove the tort of negligent entrustment against Sherif Ismail.

[2]

On appeal, CUMIS argues that the trial judge made palpable and
    overriding errors in her factual findings and that she further erred in failing
    to find it had established the tort of negligent entrustment.

[3]

The appellant's first argument is that the trial judge made a
    palpable and overriding error in concluding there was no evidence that Sherif
    Ismail was chalking the tires of his Honda right up to the date of the
    accident.

[4]

We disagree. In making this argument, CUMIS is inviting us to
    draw inferences different from those drawn by the trial judge based on the
    record that was before her. The inference urged by CUMIS  that the appellant's
    discovery evidence amounted to an acknowledgement that he began chalking the
    Honda's tires four or five years prior to the accident and continued doing so
    up to the date of the accident  is not a necessary inference arising from the
    record. The trial judge did not find Sherif Ismail to be a credible witness. It
    was open to her to accept all, some or none of his evidence.

[5]

The appellant's second argument is that the trial judge made a
    palpable and overriding error in concluding that there was no evidence that
    Sherif Ismail was chalking the tires on his Honda because he suspected that his
    son, Nihad (or another unlicensed driver in his household) would take the
    vehicle.

[6]

Again, we disagree. As a starting point, in making this
    argument, the appellant misstates the trial judge's finding. The trial judge
    found there was no evidence to explain why Sherif Ismail was chalking his tires
    and that she was unable to conclude that he did it because of Nihad Ismail.
    There is no palpable and overriding error in this finding. The trial judge
    noted there was no evidence of a course of poor behaviour or troublemaking on
    Nihad's part before the accident. Nor was there evidence concerning why Sherif
    Ismail was chalking his tires.

[7]

Finally, we reject the appellant's argument that the trial
    judge erred in failing to find it had established negligent entrustment. The
    trial judge found that Nihad Ismail drove his father's vehicle without his
    father's consent, either express or implied. The appellant does not challenge
    the trial judge's description of the elements of the tort of negligent
    entrustment as accepted in other jurisdictions. Even assuming this tort exists
    in Ontario in relation to motor vehicles, we fail to see how it could be
    established in the face of the trial judge's findings concerning no implied
    consent. In addition, the trial judge correctly concluded that the elements of
    negligent entrustment were not met.

[8]

We note that, on appeal, the appellant advanced arguments based
    on negligence and negligent entrustment. However, the arguments concerning
    negligence were not advanced in the court below. Accordingly, we decline to
    address them here.

[9]

The appeal is therefore dismissed.

[10]

Costs of the appeal payable by CUMIS are to the respondent on a
    partial indemnity scale fixed in the agreed upon amount of $10,000 inclusive of
    disbursements and applicable taxes.

Janet Simmons J.A.

S.E. Pepall J.A.

Fragomeni J. (
ad hoc
)


