Court File and Parties

COURT FILE NO.: CV-12-35874 DATE: 2017-04-03 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Michelle Ligaj and Stanislaw Ligaj Plaintiffs

S. Sloan, for the Plaintiffs

• and -

Nihad Ismail, Sherif Ismail, and Cumis General Insurance Company Defendants

A. Camporese and S. Coons, for the Defendant Sherif Ismail Nihad Ismail, Self-Represented B. Cook and R. Runge, Counsel for the Defendant Cumis

HEARD: September 27, 28 and 29, 2016

REASONS FOR JUDGMENT

The Honourable Mdm. Justice J. Milanetti

[1] On July the 11th, 2011, 16 year old Nihad Ismail, the holder of a G1 licence (“beginners”) was operating his father Sherif’s Honda Accord. He was involved in a motor vehicle accident, rear-ending the vehicle of the plaintiff, Michelle Ligaj.

[2] Nihad Ismail had taken his father’s car from the garage, using the keys that typically (and to this day) hang on a key hanger made by Nihad himself. All of the family’s keys were kept on this hanger. Sherif Ismail was not home when Nihad took the car; Nihad’s mother was home but ill upstairs.

[3] In this first phase of a bifurcated trial, I am asked to decide whether Nihad had his father’s express or implied consent to possession of the vehicle. Alternatively, I am asked if Sherif Ismail negligently entrusted his vehicle to his son Nihad. This part of the case involved counsel for the insurers of the Ismail vehicle and the insurers of the plaintiff’s vehicle (under her uninsured coverage). As such, only the co-defendants were involved in this trial; Nihad Ismail was self-represented.

The Evidence

[4] I heard from each of Nihad Ismail and his father Sherif (via Badini Kurdish interpreter). I also heard briefly from Nihad’s sister Dilvin (whom Nihad picked up at the bus stop on his way home from the videogame store in his father’s car). Dilvin was unlicensed at the time and thus not qualified to satisfy the G1 condition that a beginner driver drive only in the presence of a licenced driver with at least five years’ experience.

[5] Each of the male Ismails recanted from much of the sworn evidence provided by them at their respective examinations for discovery. Nihad said that he had been told by his former lawyer (now apparently suspended by the Law Society), that he should tailor his evidence to match that of his father’s. Nihad said his story at discovery was not true; he thus provided a substantially different version at trial on many fundamental points.

[6] Sherif Ismail’s issues are more complicated and more confusing. The trial, initially slated to proceed in May, was adjourned to September as I (the judge speaking to the speak-to court) was told there were issues with the accuracy of the discovery transcript. As a result, I was told that both parties approved the hiring of a new Kurdish interpreter (able to accurately interpret Badini) to prepare a new transcript from the audiotape of the initial discovery. That individual, Mr. Fahmi Amso, testified that he obtained a clearer copy of the audio from his employer. Mr. Amso said that he created the transcript presented at trial based on what he listened to on the audiotape.

[7] Mr. Amso, in my view, was somewhat critical of the initial translator as there were areas that were not “word by word”, but rather the translator had given a general idea of what was said.

[8] It is the newly prepared transcript that was relied on at trial. That being said, Mr. Ismail maintains that this transcript does not accurately reflect what he said at discovery either. Once again, this is most particularly in areas of contention.

[9] I am thus asked to choose which version of the sworn testimony of these individuals is accurate. Clearly, the divergent versions of each of their stories create significant issues vis-à-vis an assessment of their respective credibility.

Consent

[10] It is clear, and I find as fact, that Nihad took his dad’s Honda from the garage using the keys on the hook. I accept that he did not ask to do so, nor was he given permission to drive when not in the company of a licenced driver. I thus have no difficulty accepting that he did not have his father’s express consent to use the vehicle on the day of the accident.

[11] The real issue for my decision relates to whether I find that Sherif had a suspicion that his son (or someone else in the house) was using the vehicles without consent. If such were the case, why did Sherif not remove the keys from the public hanger in the hallway?

[12] This potential “suspicion” derives from Sherif Ismail’s discovery testimony that he chalked the tires of the Honda Accord secretly, at night, without knowledge of his children. As well, Sherif Ismail at discovery said that he had removed the fuse from the Nissan Pathfinder that he also owned, under similar secretive circumstances.

[13] At trial, Nihad said that statement was untrue, that he had been told to say it. And Sherif Ismail said that that was not what he meant.

[14] Sherif said that he did not chalk the tires of the Honda or remove the fuse from the Nissan, but he had said that he could have done those things. Clearly, the transcript reads otherwise.

[15] Mr. Ismail was not a good witness. He was almost entirely non-responsive to questions in cross-examination and argumentative. His trial version did not make sense, most particularly given that a new interpreter who was specifically chosen to do a more accurate transcript apparently failed (a second time) to accurately reflect the discovery.

[16] Over and above, I find it incredible that the chalking and fuse removal, complete with quite explicit details as to timing, secrecy, and fuse placement in his pocket could all be merely “theoretical”, “what he could have done” rather than as they read, what he did do. As such, his trial position change does not ring true to me.

[17] Similarly, Nihad’s (while an inherently better and more forthright witness than his father) trial evidence seems a little too convenient.

[18] So where does that leave me? Is consent implied because a suspicious individual chalks his car tires? Does such suspicion mandate removal of the keys?

NIHAD ISMAIL

[19] Nihad was 16 at the time of this motor vehicle accident on July 11, 2011. He had had a G1 license for 11 months. Nihad knew that with a G1 he was only able to drive when accompanied by a driver with at least 5 years’ experience.

[20] His father Sherif knew of this requirement and told Nihad that he could only drive when he (his dad) was with him. Nihad did not recall when this conversation happened, but understood that this was a rule right up until the date of the motor vehicle accident. Nihad was never permitted to drive on his own before the accident; he never asked to as he knew the answer would be “never”. As far as Nihad was aware, he and Sherif were the only licenced drivers in their family home as at July 11, 2011.

[21] All of the keys for the house and the vehicles were kept on a rack that Nihad himself had made in class. He did not recall where that was kept, but said it was in a place everyone in the house had access to. There had never been a discussion not to use the keys as Nihad said his father trusted that he would not take the keys.

[22] On the day of the accident, Nihad decided to go and buy a videogame that had just been released. He left with the Honda Accord thinking he could get to EB Games and back fast. He knew he did not have his dad’s permission to take the car; he didn’t ask for same. Only his mother was home at the time. She was upstairs ill. Mrs. Ismail knew neither that Nihad left the house nor that he took the car.

[23] Nihad went to EB Games but did not buy the videogame as he did not have enough money. He thus went home and saw his sister Dilvin at the bus stop on his way. He stopped to pick her up and she said “does dad know you have the car?” He said no, don’t worry; we’ll be home fast.

[24] Dilvin got in the car; the accident occurred shortly after. Their evidence was that Nihad “tapped” the bumper of a vehicle ahead on Rymal Road that braked suddenly. Both got out and asked the woman if she was okay. She was yelling at Nihad that her vehicle was a 2012. They exchanged insurance information and identification. Neither police nor ambulance were called.

[25] Dilvin called their dad as Nihad was scared to talk to him as he’d disobeyed him. When Sherif and Nihad’s brother arrived, he described his dad as “more disappointed”. Nihad was pretty sure his dad only asked why he would have taken the car.

[26] They all went home and police arrived a couple of hours later. Nihad told them what happened and said he did not have permission to drive. His dad was there as well and confirmed it. Nihad was charged with careless driving and driving with a G1 unaccompanied by a qualified driver.

[27] Nihad said that:

• He had never taken either car without permission before the accident
• He had never been given permission by his dad to take the car
• He was never accused by his dad of taking cars
• His father never expressed concerns about him taking cars
• He did not ask his mom for permission to use the cars
• He knew that with a G1 he was not supposed to drive by himself, but he did it anyway, even though his dad would not want him to

[28] Nihad confirmed that neither of his parents ever told him he could use the vehicles whenever he wanted. He said that this had been a “stupid decision” – he was 16 and just wanted a videogame.

[29] Nihad was cross-examined about use of the car keys. He said that he was able to go out and grab something if he had forgotten it in the car using the keys. He might also use the keys to wash the car or to listen to music.

[30] Significant cross-examination focused on differences between Nihad’s evidence in-chief and his discovery (largely as related to the chalking of tires):

a. At discovery, he said his dad chalked the tires of the Accord and that he had seen him do so after the accident. At trial, he said that was not true, it did not happen. His prior lawyer had told him to say that as his father had.

b. At discovery, Nihad said that his dad waited for Nihad to get inside to chalk the tires/remove the fuse “because I thought to myself, so then, right, to make sure I don’t drive it”. At trial, Nihad said that he never saw his dad chalk the tires/remove the fuse; his dad never told him he had done that.

c. At discovery, Nihad said that once he learned his dad was chalking the tires, it kept him in check for a while. At trial, Nihad said that his dad never chalked the tires; he just said that as his lawyer told him to (so as to put blame more on his dad’s insurer so that it would not come back on Nihad as much).

d. At discovery, Nihad said he found out his dad had been taking the fuse out of the Nissan Pathfinder when they moved to the new house. At trial, he says that he was not doing that at the time of the accident.

e. At discovery, Nihad said that he had assumed his father took these steps because of him. At trial, Nihad denied the suggestion that he assumed he was chalking the tires/taking the fuse out as his dad assumed Nihad was taking the vehicles.

f. At discovery, Nihad said that he took the Accord out one other time before the accident. At trial, Nihad said he had never taken either car out without permission before the accident.

g. At discovery, Nihad said that he told his dad about having taken the car out once previously without his consent. At trial, Nihad denies having taken the car to go to the park or ever telling his dad he had taken it previously. Once again, Nihad says that is what his lawyer told him to say. Unfortunately, we never heard from that individual.

SHERIF ISMAIL

[31] Much of Sherif Ismail’s evidence as well, focused on numerous contradictions between his discovery and trial evidence. In-chief, he said that:

a. Nihad never drove any of the vehicles, to his knowledge – “just with me” as he had to be beside him when he drove. b. That he had had discussion with Nihad even when he was still a child that this was the law in Canada. c. To his knowledge, Nihad nor any of his children had ever driven the cars by themselves – “none of them”. d. He had no concerns that his kids were taking any of his vehicles. They had never asked for permission to take them on their own before. e. On the day of the accident, Sherif went to Limeridge Mall with his eldest son and some friends. Nihad did not ask to use the Honda before Sherif left the house. f. Nihad was in school at the time of the accident. g. None of his kids had any problems in Canada. h. He never had concerns about his kids’ behaviour before. i. After the accident, Sherif asked Nihad “why did you do that?” Nihad said that he went to get a CD. j. After the accident, Nihad never asked, nor did Mr. Ismail ever give him permission to drive this car on his own.

[32] The lion’s share of the cross-examination focused on the differences between Mr. Ismail’s discovery and trial evidence, most particularly in relation to chalking the tires/removal of the Nissan’s fuse. Although various aspects of quite specific discovery evidence was put to Sherif Ismail, he maintained that the new examination for discovery transcript is not correct – that he did not say that he chalked the tires or removed the fuses, only that he ‘could have’; ‘intended to’ (about four to five years before the discovery in March 2013) but he never did it. Sherif said that he did not do it but was “able to” and “wished to do that”. Many very specific questions and answers were put to Mr. Ismail from this discovery.

[33] At page 18, question 150 to 152 for instance, he was asked “if he would ever do [chalk] both cars”. He responded “just one, the Honda” and then “as the other car has a fuse – if I take it out I know the key won’t drive”.

[34] At question 196 to 200, Mr. Ismail said “I put the fuse in my pocket. Not always. When I... sometimes I have a feeling to do that”. Similar examples were drawn from questions 67 to 71, 143 to 144, and 145 to 148.

[35] While Mr. Ismail maintains that this second interpreter did not understand his responses either, this was not revealed until cross-examination. I find that Mr. Ismail’s evidence does not ring true. I find it illogical that direct answers of such specificity could all be wrong; the product of misunderstanding. I also note that all of these “misunderstandings” dealt with the issue of chalking the tires and removal of the fuse. I do not accept Mr. Ismail’s trial responses as credible, logical, or sensible. It seemed entirely illogical that he would have said what he “could have done” four to five years before the discovery or 2008/2009 so many times.

[36] As a result, I find Sherif’s trial evidence to be less than credible. Where does that leave the court? Even if I accept that Mr. Ismail was chalking the tires of the Honda and removing the fuse from the Pathfinder four to five years before the 2013 discovery, I have no evidence whatsoever to explain why Sherif Ismail would have taken such steps. Did he suspect that one of his kids might take a car? He specifically denies that.

[37] I have no evidence of a course of poor behaviour, troublemaking, or more specifically that Nihad (although Nihad said he had taken the car one other time but his dad did not know) or any of his children had ever taken a car without permission previously.

[38] While the flip-flopping of evidence might suggest same had happened, I am unable to conclude that Sherif Ismail had taken such steps specifically because of Nihad. This is most particularly the case given his discovery evidence (that he had taken these steps four to five years before the discovery in 2013), when Nihad would have been 14 or 15 at the time. Sherif did have an older son; perhaps he had been concerned about him. I cannot say.

[39] Regardless, even if I accept that Sherif took steps to chalk the tires and take the fuse out of the other vehicle four to five years prior to discovery, I had no evidence that he continued to take such steps right up until the accident. I thus fail to see the relevance to the issues that are before me in connection with July 11th, 2011. While I agree such steps sound like Sherif had been suspicious of something or someone, I have no basis for linking same to Nihad specifically, or certainly to Nihad’s driving of the Honda Accord on July 11th, 2011.

DILVIN ISMAIL

[40] Dilvin is 23 years old and lives with her sister in Toronto. She is a teacher in ECE. She confirms that she was in the vehicle when Nihad had the accident on July the 11th, 2011. He had picked her up at the bus stop at Rymal and Centennial after she had finished work at her job at Subway. Dilvin confirmed that her father Sherif was the only one in the family able to operate the motor vehicles. She said they were not allowed to use the vehicles at all. She had never had a conversation about it with her father, she just knew.

[41] When her brother stopped to pick her up at the bus stop, she asked him why he was driving dad’s car, and he said don’t worry about it, we’ll be home soon, just get in. She told him she was going to tell dad and got in the vehicle.

[42] Dilvin said that the plaintiff stopped suddenly and her brother tapped the back of that car. When they pulled over and asked her how she was, she was aggressive towards them. Dilvin called home; her mother told her to call her brother. She did so and asked if he and their dad could come and pick them up. She did not speak to her father on the telephone.

[43] Sherif and their brother Assad arrived at the scene and they all drove home together in the Honda. She did not know how her dad’s Nissan (that he had come in) got home. Neither police nor ambulance were called.

[44] Dilvin said she had no knowledge of Nihad ever taking his dad’s vehicle before. In cross-examination, she said that it was possible that he took the car before and she did not know. The keys are there and they all have access to them.

[45] I found Dilvin to be a straightforward and credible witness.

Legal Analysis

A. CONSENT

[46] I read all of the case law provided to me with interest. I additionally reviewed the more recent decisions of Justice Perell in Conners v. D’Angelo, 2017 ONSC 1104 (looking at vicarious liability under s. 192 of the Highway Traffic Act) and the Court of Appeal decision of J.J. v. C.C., 2016 ONCA 718. Justice Perell (like Justice Kent before him in Myers-Gordon) did a thorough review of the jurisprudence. Each of those cases were helpful to me in distilling the important factors to consider on this issue.

[47] It is clear that the onus is on the owner of the vehicle to establish that there had been no consent, either express or implied.

[48] It is clear to me (and for the most part accepted by counsel) that there is no evidence of express consent. The issue requiring my assessment deals with whether or not there was implied consent.

[49] The test is outlined in Palsky v. Humphrey, [1964] S.C.R. – “Did the operator believe that he had consent; is he justified in having that subjective belief?” More recently, our Court of Appeal in Fernandes v. Araujo, 2015 ONCA 571 stated that while there is a subjective component to the test for implied consent, a judge must give “careful consideration to all the evidence”. The driver’s subjective belief that he or she had consent to possess the vehicle is not alone determinative of whether consent was implied.

[50] In the case before me, Nihad Ismail was clear that he did not have his father’s consent; never asked his father to use the car as he knew the answer would be never. Nihad knew it was a rule that he could only drive when his father was with him; he had never been permitted to drive without his dad in the vehicle previously.

[51] There clearly, in my view, was no evidence that Sherif Ismail ever allowed his son to drive on his own before. Moreover, shortly post-accident when asked by police (at his home) Nihad Ismail said that he did not have his father’s consent to drive on the evening of the accident. He had known the house rule and disobeyed it – that is why he had Dilvin call his father after the accident. Dilvin as well, confirmed the house rule, asking Nihad what he was doing with the car when he pulled up to her at the bus stop. She also she told him she was going to tell their father.

[52] I had no evidence of bad behaviour, or a criminal record on Nihad’s part before the accident. While Nihad admitted that he had used the car once before on his own, he never told his father until sometime after this accident.

[53] I thus find that Mr. Sherif Ismail did not act unreasonably by leaving his keys on a hanger in a public area. From my review of the law, same is not fatal unless the owner of the vehicle knew of the driver’s record of bad or irresponsible behaviour or had allowed him to drive on his own in the past. There is no evidence that Sherif had any such knowledge or allowed Nihad to drive on his own at any time previously.

[54] The best argument that can be advanced relates to Sherif’s discovery evidence that he chalked tires. Absent any information that he did so (four to five years before the March 2013 discovery, thus in 2008 or 2009 when Nihad was fourteen or fifteen) because Nihad specifically gave Sherif reason to be suspicious I do not accept that implied consent has been proven.

[55] Even if the discovery transcript evidence is accepted, I had no evidence that Sherif Ismail continued to chalk the tires right up until the date of the 2011 accident. Moreover, even if I were to infer from the chalking that Sherif had a suspicion in 2008 or 2009, did that relate to Nihad or another of his siblings? As well, I had no evidence that the chalking continued until the motor vehicle accident and am thus unable to link this “suspicion” to the accident in question. At the end of the day, there is insufficient evidence to warrant a finding of implied consent based on the accessibility of the keys alone.

[56] The defendant also relies on the tort of negligent entrustment and vicarious liability based on s. 192(2) of the Highway Traffic Act which states:

Section 192(2) provides that the owner of a motor vehicle is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle on a highway, unless the motor vehicle was without the owner’s consent in the possession of some person other than the owner or the owner’s chauffeur.

[57] Finlayson v. GMAC Leaseco Ltd./GMAC Location Ltée, 2007 ONCA 106, 86 O.R. (3d) 481, [2007] 3 D.L.R. 119 (C.A.) stands for the proposition that if consent to mere possession is given, the owner will be liable even if there is a breach of a condition attached to possession.

[58] The public policy rationale for this distinction was set out in Thompson v. Bourchier, [1933] O.R. 525 (C.A.) as “to protect the public by imposing upon the owner of a motor vehicle the responsibility of the careful management thereof and of assuming the risk of those to whom he entrusted possession that they would observe the law, and that if they failed in the discharge of that duty the owner … would be responsible [for all damages].”

[59] Accordingly, if Sherif has satisfied the court, on a balance of probabilities, that he did not explicitly or impliedly consent to Nihad’s possession of the vehicle, he cannot be held liable for the damage which ensued.

[60] In Seegmiller v. Langer et al. (2008), 2008 ONSC 53138, 301 D.L.R. (4th) 454, 77 M.V.R. (5th) 46 (Ont. S.C.J.), at para. 34, Strathy J. reviewed the case law and distilled eight principles pertaining to implied consent:

1. The question of whether a motor vehicle is in the possession of some person without the consent of the owner is a question of fact to be determined by the evidence in a particular case: Henwood v. Coburn, above, at para. 25; Thorne v. Prets, 2003 ONCA 22084, [2003] O.J. No. 5241, 45 M.V.R. (4th) 69 (Ont. C.A.); Barham v. Marsden, [1960] O.J. No. 60, [1960] O.W.N. 153 (Ont. C.A.) at 154; Newman v. Terdik (1952), 1952 ONCA 97, [1953] O.R. 1 (Ont. C.A.) at 7.
2. The meaning of possession is a question of law but the application of that definition to any particular set of facts is not a question of law alone: Henwood v. Coburn above.
3. Possession is a concept capable of different meanings and there are different types of possession. The primary definition of possession contemplates power, control or dominion over property: see Black’s Law Dictionary, (8th ed., 2004).
4. Once ownership of a vehicle is established, the onus passes to the owner to establish that the vehicle was, without the consent of the owner, in the possession of some person other than the owner: see Ross v. Vayda, 1990 ONCA 8082, 40 O.A.C. 149, [1990] O.J. No. 1583 (Ont. C.A.).
5. The owner’s vicarious liability under s. 192 [of the H.T.A.] is based on possession, as opposed to operation of the vehicle: see Thompson v. Bourchier, above; Finlayson v. GMAC Leaseco Ltd./GMAC Location Ltée, above.
6. “[C]onsent to possession of a vehicle is not synonymous with consent to operate it. Public policy considerations reinforce the importance of maintaining that distinction.”: Finlayson v. GMAC Leaseco Ltd./GMAC Location Ltée, at para. 3.
7. If possession is given, the owner will be liable even if there is a breach of a condition attached to that possession, including a condition that the person in possession will not operate the vehicle: Finlayson v. GMAC Leaseco Ltd./GMAC Location Ltée; Donald v. Huntley Service Centre Ltd., 1987 ONSC 4199, 61 O.R. (2d) 257, [1987] O.J. No. 829 (Ont. H.C.).
8. Breach of conditions placed by the owner on a person’s possession of the vehicle, including conditions as to who may operate the vehicle, do not alter the fact of possession: Thompson v. Bourchier, above; Finlayson v. GMAC Leaseco Ltd./GMAC Location Ltée, above.

[61] In the case before me, Nihad said that on previous occasions he had been permitted to get something forgotten from the cars; listened to music; might have washed the car. Sherif Ismail said that Nihad could get something out of or put something into the car. When asked if Nihad could have washed or repaired it if he wanted to, Sherif said “he hasn’t done it yet”. He was not asked about listening to music.

[62] Accepting that Mr. Sherif Ismail permitted Nihad to be in possession of his vehicle to get something in or out of it, I find it stretches common sense and the rationale behind the public policy reasons aforesaid in connection with s. 192(2) to suggest that a father’s consent to his son “possessing” the vehicle to grab an item from the trunk could, at a later date, be construed as consent to possess the vehicle to drive it, particularly when he was not fully licenced.

[63] Utilizing the principles set out by Justice Strathy in Seegmiller, I find it a stretch to suggest that Sherif ever implicitly granted Nihad “power, control or dominion” over the Honda. To the extent that Nihad was ever granted sole possession of the Honda, it was for brief durations and specified purposes, none of which involved the vehicle leaving its parking spot.

[64] I do not accept that vicarious liability has been established based on these elements of possession.

B. NEGLIGENT ENTRUSTMENT

[65] While I heard significant argument and read most interesting law on the quite novel tort of negligent entrustment, (picked up largely from American jurisprudence), I do not see this approach as being particularly germane to the factual situation before me. The case presented to me is really an issue of implied consent.

[66] While I am prepared to accept that the novel tort of negligent entrustment may indeed exist, I note that the Court of Appeal in Graham v. Lemay, 2016 ONCA 55 articulates the ambiguity respecting the tort’s existence in Ontario:

The parties and the motions judge proceeded on the basis that the tort of negligent entrustment exists in Ontario and in that regard relied on Cella. While the tort exists in the United States and arguably in British Columbia (Schulz, at p. 105), and has been advanced in Ontario (Vynckier v. Brown, …; Persaud v. Suedat, …; Ladouceur v. Zimmerman, [2009] O.J. No. 4777 (Ont. S.C.J.); and Ahmetspasic v. Love, [[2002] O.J. No. 5093] (Ont. S.C.J.)), no definitive statement on the existence of the tort has been enunciated by either the Supreme Court of Canada or by this court. As the appeal was not argued on the basis that the tort does not exist, I propose to address this ground of appeal assuming, without deciding, that such a tort does exist.

[67] The jurisprudence provided to me suggest that there are five basic elements of a negligent entrustment claim:

1. There was an entrustment of the chattel by its owner to the entrustee;
2. The entrustee was incompetent, inexperienced, or reckless;
3. The entrustor knew or ought to have known of the entrustee’s condition or proclivities;
4. The entrustment created an appreciable risk of harm to the plaintiff, and a relational duty on the part of the defendant; and
5. The entrustee’s negligence was the proximate cause of the damage to the plaintiff.

[68] The onus is on the defendant to prove that Sherif Ismail was negligent on a balance of probabilities. I find that based on the facts before me and a review of the jurisprudence from both parties, that the defendant has not established the first element – that Sherif Ismail entrusted the chattel to Nihad.

[69] When one reviews the Canadian case law in relation to negligent entrustment, it appears that there must be a “direct giving” of the chattel (the vehicle) from owner to operator to establish the “entrustment”. In the case before me, I do not accept that Sherif ever gave the vehicle over to his son knowing that he was incompetent, inexperienced, or reckless (or unqualified in law to drive without a licenced driver). This first element of the tort was inadequately proven.

[70] I do not accept that this tort has been established on a balance of probabilities.

Conclusion

[71] I find that Nihad drove his father’s vehicle with neither express nor implied consent. I further find that the defendants have failed to establish the tort of negligent entrustment.

“J. Milanetti”

MILANETTI J.

Released: April 3, 2017

COURT FILE NO.: CV-12-35874 DATE: 2017-04-03 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Michelle Ligaj and Stanislaw Ligaj Plaintiffs - and - Nihad Ismail, Sherif Ismail, and Cumis General Insurance Company Defendants REASONS FOR JUDGMENT JAM:co Released: April 3, 2017