Madill v. Chu

The Plaintiff is a taxi driver and resides in the City of Toronto, in the Municipality of Metropolitan Toronto.

On or about the 1st day of February, 1973, the Plaintiff while in the course of his employment as a taxi driver was operating an automobile owned by one, Murray Goodman when he sustained bodily injuries as a result of a collision with another motor vehicle owned and operated by David J. Dadd.

At the time of the said collision, the motor vehicle which was being driven by the Plaintiff was insured by a standard automobile policy issued by the Defendant insurer as number 173497TD.

By the terms of the said policy, the Defendant agreed to pay to any person while an occupant of the insured motor vehicle who sustained bodily injury by an accident arising out of the use or operation of the said automobile, a weekly benefit for the period during which the injury shall wholly or continuously disable such person and prevent him from performing in [sic] any or every duty pertaining to his occupation or employment, said weekly benefit to be at the rate of 80% of the gross weekly earnings of the person injured subject to a maximum of $70.00 per week.

As a result of the injuries sustained by him in the accident aforesaid, the Plaintiff was wholly and continuously disabled and prevented from performing any or every duty pertaining to his occupation for [sic—“or”] employment for a period of 28 weeks.

At the date of the accident aforesaid, the Plaintiff was gainfully employed as a taxi driver and had gross weekly earnings in excess of $100.00 per week.

The Plaintiff has caused Notice of the Claim to be given to the Defendant and has furnished the Defendant with a Proof of Claim as provided by the said Policy. The Defendant has refused to pay the benefit provided for in the said Policy upon the grounds that the Policy contains an exclusionary clause which clause reads as follows:

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(2) EXCLUSIONS

a) The insurer shall not be liable under this section for bodily injury to or death of any person,…

ii) who is entitled to receive the benefits of any workmen’s compensation law or plan;…

The Plaintiff has made no claim under The Workmen’s Compensation Act, R.S.O. 1970 Chapter 505.

The Plaintiff has commenced an action against the owner and operator of the other motor vehicle involved in the collision but such action has not yet come to trial.

In the event that this Court determines that the Plaintiff is entitled to the benefits provided for in the said Policy, the Plaintiff is entitled to recover from the Defendant the sum of $1,960.00.