COURT OF APPEAL FOR ONTARIO

CITATION: Afzal v. National Bank of Canada, 2014 ONCA 26

DATE: 20140114

DOCKET: C55842

Rosenberg, MacPherson and LaForme JJ.A.

BETWEEN

Mohammed Haseeb Afzal

Plaintiff (Appellant)

and

National Bank of Canada and National Bank Life Insurance Company

Defendants (Respondents)

Todd J. McCarthy, for the appellant

Christine Carter, for the respondents

Heard: January 8, 2014

On appeal from the judgment of Justice of Justice John A.B. MacDonald of the Superior Court of Justice, dated July 4, 2012.

ENDORSEMENT

[1] The appellant Mohammed Afzal appeals from the judgment of John MacDonald J. of the Superior Court of Justice dated July 4, 2012, dismissing his action for damages pursuant to a policy for critical illness insurance purchased in connection with a mortgage loan from the respondents.

[2] The respondent National Bank Life Insurance Company cross-appeals from the trial judge’s decision that there should be no costs of the action. The respondent National Bank of Canada abandoned its identical cross-appeal.

A. The appeal

[3] The appellant made a Consumer Loan Application for life insurance and critical illness insurance in connection with a mortgage loan application on June 26, 2006. On that day, he received a Certificate of Insurance.

[4] On June 4, 2007, the appellant felt discomfort in his chest, shoulders and jaw. He had a severe pain in his right arm. He did not go to a medical doctor or hospital even though his wife, who had been a medical doctor in Pakistan, told him that it looked like he was having a heart attack and should go to the hospital.

[5] On June 18, 2007, the appellant experienced similar symptoms and attended the William Osler Health Centre in Brampton. He was discharged the same day. He was seen by a cardiologist, Dr. Milan Gupta, who recorded in a Final Summary Report:

This 32-year-old man is being discharged home following an admission for chest discomfort.

His lab work was unremarkable with normal troponins. His ECG and clinical examination were consistent with an old silent apical infarction.

[6] The appellant’s critical illness insurance policy defined “critical illness” as including “heart attack”. The policy defined “heart attack (myocardial infarction)” as:

A diagnosis by a cardiologist or internist authorized to practise or practising medicine in a Canadian province, of the death of part of the heart muscle resulting from inadequate blood supply to the appropriate area.

The diagnosis must be based on the simultaneous presence of the following two points: changes on the electrocardiogram (ECG) indicating a myocardial infarction and an elevated level of cardiac enzymes or any other marker above acceptable levels. [Emphasis added.]

[7] The policy also provided this exclusion:

Concerning Critical Illness Insurance only:

No benefits shall be paid for a Critical Illness:

• Heart Attack: resulting from the findings on an electrocardiogram (ECG) indicating a previous infarction.

[8] On the coverage issue, the trial judge held that the appellant had established the first point on the diagnosis of heart attack – there were changes on the ECG indicating a myocardial infarction. However, the appellant had not established either of the two alternative components of the second point of the diagnosis – there was not an elevated level of cardiac enzymes and there was no other marker above acceptable levels. On the exclusion issue, the trial judge held that it did not apply.

[9] The appellant does not challenge the trial judge’s finding on the “elevated level of cardiac enzymes” point. The respondent does not cross-appeal on either the “changes on the ECG indicating a myocardial infarction” point or the trial judge’s interpretation of the exclusion clause.

[10] Accordingly, the appeal relates to the trial judge’s interpretation of the “any other marker above acceptable levels” component of the second point in the diagnosis of “heart attack”.

[11] The appellant contends that the trial judge erred in his interpretation of both the “any other marker” and “above acceptable levels” language in the policy.

[12] The appellant submits that the trial judge erred by concluding that “any other marker” could include consideration, for a second time, of the ECG results. The trial judge found, correctly says the appellant, that the changes in the ECG indicated a myocardial infarction (the first point in the definition of a heart attack diagnosis). He should have been willing to consider a second aspect of the ECG results, namely, the elevated ST wave, and should have found that it was “any other marker”.

[13] We do not accept this submission. In our view, the trial judge was correct in this reasoning:

The plaintiff submits that the results of his ECG’s are “any other marker.” However, the definition under consideration is clear in stating that the diagnosis of heart attack must be based on two points, which are present simultaneously. One of these points is changes on the ECG “indicating a myocardial infarction.” Clearly, then, for there to be two points present simultaneously on which the diagnosis is based, there must be something in addition to changes on the ECG indicating a myocardial infarction.

[14] We agree with this analysis and with his observation that this interpretation is also the more usual and ordinary meaning of the words under consideration. This is especially so in light of the fact that the evidence established that there were several other significant diagnostic processes and results that could be used as “any other markers”, including echocardiograms, nuclear perfusion studies, and blood markers.

[15] The appellant contends that the trial judge erred by not finding that the results of his echocardiogram and nuclear perfusion study were “above normal acceptable levels”. In making this submission, he asserts that, in the context of this insurance policy, the word “above” does not mean only “higher”; rather, it also means “different than”.

[16] We disagree. We endorse the trial judge’s analysis:

This language is also clear and unambiguous. The certificate of insurance does not say, “different from normal acceptable levels”, which would mean that results above or below normal acceptable levels would comply with this coverage term. In my opinion, since the language must be looked at as a whole, this requirement modifies and narrows the broad sweep of the phrase “any other marker”. This coverage term, I find, refers to any cardiac test or study in which results consistent with a heart attack are above, not below, normal acceptable levels.

[17] We also observe that in addition to interpreting the actual wording of the policy provision, the trial judge reviewed the medical evidence relating to the readings from diagnostic steps other than the ECG and concluded that they did not establish anything higher than normal acceptable levels. We see no basis for interfering with this conclusion.

[18] For these reasons, the appeal is dismissed.

B. The cross-appeal

[19] In a very brief submission, both orally and in its factum, the respondent National Bank Life Insurance Company, but not the respondent National Bank of Canada, asserts that the trial judge erred by departing from the usual practice that costs follow the event and ordering that “there be no costs of this action.”

[20] We see no basis for interfering with the trial judge’s exercise of discretion in awarding no costs.

[21] The cross-appeal is dismissed.

[22] There will be no costs of the appeal and cross-appeal.

“M. Rosenberg J.A.”

“J.C. MacPherson J.A.”

“H.S. LaForme J.A.”