DATE: 20060426

DOCKET: C43561

COURT OF APPEAL FOR ONTARIO

RE:

ASMA SHEIKH, MOHAMMED MAUSOOF SHEIKH, WASIM SHEIKH, HASAN SHEIKH and MALEEHA SHEIKH an infant by her Litigation Guardian, Mohammed Mausoof Sheikh (Plaintiffs (Appellants))

– and –

CANADIAN GENERAL UNION INSURANCE COMPANY OF CANADA, THE ESTATE OF ASMA UDDIN, SYED UDDIN, GEORGE NOACK, MARILOU NOACK, BILAL PAREKH, ANAS TELI, FARIED DESAI and YUSIF TELI and SANDRA MCNEELY AS LITIGATION ADMINISTRATOR OF THE ESTATE OF ASMA UDDIN (Defendants (Respondents))

BEFORE:

GOUDGE, SHARPE AND GILLESE JJ.A.

COUNSEL:

Hillel David

for the appellant

Gerry Gill

for the respondent

HEARD & ENDORSED:

April 19, 2006

On appeal from the order of Justice Gerald Day of the Superior Court of Justice dated February 22, 2005.

A P P E A L B O O K E N D O R S E M E N T

[1] In our view the very limited evidence of erratic driving is too ill defined to permit an inference that the oncoming driver could have or should have reasonably taken evasive action or had the time to do so. We agree with the motion judge that there is no genuine issue for trial as to the respondent’s possible negligence. The appeal is dismissed. Costs to the respondent fixed at $6000.