The limitation period in section 259 of the Insurane Act, RSO, may not apply to a loss of use claim.
Successful application by the plaintiffs to add the insurer as a defendant. At issue was whether section 259.1 of the Insurance Act, which contains a one year limitation period, applied to the plaintiffs’ claim. The Court found that section 259.1 did not apply to "loss of use" and, therefore, the plaintiffs’ application was granted.
McMillan v. Poniatowski,  O.J. No. 6102, December 22, 2011, Ontario Superior Court of Justice, N.B. Pickell Deputy J.
The plaintiffs were involved in a motor vehicle accident with Ms. Poniatowski. The plaintiffs had commenced an action against Ms. Poniatowski and now wanted to commence an action against their insurer for loss of use of their automobile.
The decisive issue was whether section 259.1 of the Insurance Act applied. If the section applied, the action was statute-barred. Section 259.1 reads as follows:
A proceeding against an insurer under a contract in respect of loss or damage to an automobile or its contents shall be commenced within one year after the happening of the loss or damage.
The issue for the Court was whether “loss or damage to an automobile or its contents” included "loss of use".
In B.F. Jones Logistics Inc. v. Rolko,  O.J. No. 3518, Justice Lissaman noted:
It is a well-established principle of statutory interpretation that if a statutory provision specifically mentions one item but fails to mention another comparable item, then it is presumed that the legislature deliberately intended to omit the comparable.
The phrase “loss of use” is specifically mentioned in the following sections of the Insurance Act:
260. “... loss of or damage to or the loss of use of the automobile ..."
261(1). "... loss of or damage to an automobile and the loss of use thereof ..."
261(1.1). "... loss of or damage to an automobile and the loss of use thereof ..."
263(5)(a.1). "... damages to the insured's automobile or its contents or loss of use, ..."
The court concluded that when the Insurance Act is read as a whole it is clear that “the loss of or damage to an automobile”, “the loss of or damage to its contents” and “the loss of use” of the vehicle are separate and distinct heads of damages. Section 259.1 does not specifically mention “loss of use”. Therefore, loss of use was not covered by the one-year limitation in section 259.1 and the plaintiffs’ application was granted.
This case was originally summarized by Aaron D. Atkinson and originally edited by David W. Pilley.