



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 respondents
    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 judges 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 appellants claim.  Accordingly, it is
    unnecessary to address the appellants remaining grounds of attack on the
    motion judges 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 appellants
    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.


