Court of Appeal for Ontario

CITATION: Rousseau v. Scotia Bank, 2012 ONCA 279

DATE: 20120501

DOCKET: C54264

Feldman, Simmons and Cronk JJ.A.

BETWEEN

Richard Rousseau

Plaintiff/Appellant

and

Scotia Bank

Defendant/Respondent

Andrew L. Rudder, for the appellant

Douglas O. Smith and David H. Elman, for the respondent, Bank of Nova Scotia (wrongly named Scotia Bank)

Heard and released orally: April 12, 2012

On appeal from the judgment of Justice James A. Ramsay of the Superior Court of Justice, dated August 2, 2011.

ENDORSEMENT

[1] We see no basis for appellate interference with the summary judgment granted by the motion judge.

[2] The motion judge found as a fact that it was not credible that the appellant would have purchased disability insurance even if he had been offered such insurance by the respondent. This critical finding was open to the motion judge on the record before him.

[3] In particular, the evidence before the motion judge established that the appellant declined to apply for health crisis protection insurance coverage when the opportunity to do so was offered to him by the respondent. In addition: (1) the appellant acknowledged that he did not have disability insurance at any point prior to obtaining the loan in question from the respondent; (2) there was no evidence that the appellant intended to obtain disability insurance; (3) the appellant did not recall asking the respondent’s representative about any insurance; and (4) importantly, the respondent did not offer mortgage disability insurance to its customers at the relevant time.

[4] In these circumstances, there was a firm evidentiary foundation for the motion judge’s conclusion that the appellant would not have purchased disability insurance through the respondent even if it had been available to him. This finding is fatal to the appellant’s claim. Accordingly, it is unnecessary to address the appellant’s remaining grounds of attack on the motion judge’s ruling.

[5] We add that we recognize that the appellant claims that he believed he had disability insurance with Canada Life as a result of his dealings with the respondent. Even if the appellant genuinely held this belief, this record is devoid of any evidence of a reasonable basis for this belief. The fact that the appellant inquired, after the date of his 2005 injury in a motor vehicle accident, as to the nature of his insurance coverage through the respondent does not support his assertion that he believed that he had purchased disability insurance from the respondent. On the contrary, the appellant’s evidence concerning this call suggests he did not know what coverage he had purchased at the time of obtaining the mortgage loan.

[6] In all the circumstances, the appeal is dismissed. The respondent is entitled to its costs of the appeal, in the amount of $5,000, inclusive of disbursements and HST.

“K. Feldman J.A.”

“Janet Simmons J.A.”

“E.A. Cronk J.A.”