Court of Appeal for Ontario

Date: 2018-03-20 Docket: C63685

Panel: 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)

Counsel

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)"