The insured was rear-ended in a motor vehicle accident. The insurer paid for the repairs to the insured’s vehicle, but refused to compensate the insured for the diminished value of the vehicle. The insured commenced a small claims action for the diminished value and the insurer brought a motion to strike the claim on the basis that it disclosed no reasonable cause of action.
 O.J. No. 3811
Ontario Superior Court of Justice, Small Claims Court
January 12, 2016
J. Prattas Deputy J.
The insurer’s argument focused on s.5.4.4 of the Standard Ontario Automobile Policy (the “OAP”), which the insurer argued only required it to pay the lower of the cost to repair or replace the vehicle. Having complied with that obligation, the insurer argued that there was no further or greater coverage it was required to pay.
The insured submitted that diminished value was a recognized head of special damages at common law and relied on cases to that effect from other provinces. Further, the insured argued that s.5 of the OAP did not apply as it only applied to uninsured automobile coverage. Since all of the parties to the collision were insured, the insured argued that sections 6 and 7 applied in the circumstances, which offered coverage beyond repair or replacement.
For the purposes of the motion, the court was satisfied that there were genuine issues in dispute that raised triable issues. The court noted that a claim for diminished value may exist in Ontario. As well, the court disagreed with the insurer’s submission that the issue was outside the jurisdiction of the small claims court because it would recognize a new head of direct damages that was recoverable from the existing Statutory Conditions and the OAP. According to the court, the words “any action” in the s.23(1) of the Courts of Justice Act, R.S.O. 1990, c-43 was sufficiently broad to encompass both common law and equitable claims up to the prescribed monetary limit. The insurer’s motion was dismissed.