



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 judges 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 appellants 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 judges 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 judges interpretation of the exclusion clause.

[10]

Accordingly,
    the appeal relates to the trial judges 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 ECGs 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 judges 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 judges 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.


