McMynn v. Lombard General Insurance Company of Canada

McMynn v. Lombard General Insurance Company of Canada

Section 134(2) must be read conjunctively; the right to deduct unpaid premiums from amounts payable under the policy is limited to amounts payable to the party contractually liable for the premiums (the insured), and does not permit deduction from a loss payment to a third‑party additional insured (the McMynns).

Source-derived case information.

Citation
C40121
Parties
Applicants (respondents): Joanne Jacqueline McMynn and Robert McMynn; Respondent (appellant): Lombard General Insurance Company of Canada; Applicant to the Counter Application: Lombard General Insurance Company of Canada; Respondent to the Counter Application: 1441443 Ontario Ltd., operating as CBL-JLD Motorcoach Ltd. dba Maple Rhodes and/or Carlton 3000; Respondents to the Counter Application: Jack Kivik and Pia Fox
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
29 April 2004
Procedural Posture
Collection / Appeal
Outcome
Appeal dismissed.
Legal Topics
Statutory Interpretation, Insurance Act S.134(2), Deduction of Unpaid Premiums From Loss Payments, Additional Named Insured / Lessor Endorsement, Loss Payee Liability
Source Language
english
Insurance Law Contract Law Civil Procedure Statutory Interpretation Insurance Act S.134(2) Deduction of Unpaid Premiums From Loss Payments Additional Named Insured / Lessor Endorsement Loss Payee Liability

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Parties

Joanne Jacqueline McMynn and Robert McMynn

Applicants (respondents)

Lombard General Insurance Company of Canada

Respondent (appellant)

Lombard General Insurance Company of Canada

Applicant to the Counter Application

1441443 Ontario Ltd., operating as CBL-JLD Motorcoach Ltd. dba Maple Rhodes and/or Carlton 3000

Respondent to the Counter Application

Jack Kivik and Pia Fox

Respondents to the Counter Application

Procedural Posture

Collection / Appeal

Legal Issues

  1. 1 Whether s.134(2) of the Insurance Act permits an insurer to deduct unpaid premiums from a loss payment made to a third‑party additional insured (loss payee)
  2. 2 Whether the two clauses of s.134(2) must be read conjunctively and, if so, whether deduction is limited to amounts payable to the party liable for premiums under the contract
  3. 3 Whether an insurer must sue for unpaid premiums before deducting them

Ratio Decidendi

Section 134(2) must be read conjunctively; the right to deduct unpaid premiums from amounts payable under the policy is limited to amounts payable to the party contractually liable for the premiums (the insured), and does not permit deduction from a loss payment to a third‑party additional insured (the McMynns).

Court Disposition

Appeal dismissed.

Orders

  • Appeal dismissed.
  • Order affirming that Lombard may not rely on s.134(2) of the Insurance Act to withhold loss payment amounts otherwise payable to the McMynns.