Compensation under the Ontario Motor Vehicle Accident Claims Fund is not open to parties in Ontario who are living and/or working in Canada illegally, as they do not qualify as ‘ordinarily resident’
Insurance law – Automobile insurance – Benefits – Ontario Motor Vehicle Accident Claims Fund – Unidentified motorist – Jurisdiction – Statutory provisions – Ordinarily resident, definition
Silva v. John Doe,  O.J. No. 4921, 2016 ONCA 700, Ontario Court of Appeal, September 23, 2016, E.A. Cronk, P.S. Rouleau and G. Huscroft JJ.A.
This action arises out of a hit and run accident. The plaintiff, a Brazilian citizen living illegally in Canada, was struck when crossing a street. He applied for compensation pursuant to the Ontario Motor Vehicle Accident Claims Fund (the “Fund”). The Superintendent refused the plaintiff’s claim on the basis that the plaintiff was not ordinarily resident in Ontario, contrary to section 25(1) of the Motor Vehicle Accident Claims Act, RSO 1990, c M.41 (the “Act”). The plaintiff commenced an action.
The plaintiff first came to Canada in 1992. He used false documents to enter the country, and worked as a cleaner in Ontario until 1995, when he was deported. Under the terms of his deportation order, he was not permitted to enter Canada absent authorization under the Immigration and Refugee Protection Act, SC 2001, c. 27.
In 2002, the plaintiff re-entered Canada, after living illegally in the United States for approximately five years. He remained continuously in Canada until the Accident in April, 2011. During that time, the plaintiff obtained an Ontario driver’s licence and supported himself through various jobs in the construction industry. He registered a sole proprietorship in Ontario, joined a union, and carried on daily living activities in Toronto. However, the plaintiff did not pay any taxes in Canada, and he did not have a social insurance number or Ontario health card. He did not take steps to legalize his presence in Ontario.
At the time of the Accident, the plaintiff did not have a vehicle or other insurance to respond to his injuries. He applied for compensation under the Fund. The parties agreed to consider the plaintiff’s entitlement to the Fund by way of summary judgment. At issue was whether section 25(1) of the Act was applicable:
The Minister shall not pay out of the Fund any amount in favour of a person who ordinarily resides in a jurisdiction outside Ontario, unless that jurisdiction provides person who ordinarily reside in Ontario with recourse of a substantially similar character to that provided by the Act.
At the first instance, the Judge held that, despite the plaintiff’s lengthy time in Ontario, he was not ‘ordinarily resident’ in Ontario. At paragraph 51 and 52 he observed:
I do not believe that it was the intention of the Ontario Legislature in enacting this statute to allow a person the opportunity to reap the benefits of ordinary residency in Ontario via a clandestine life through the passage of time. Even though the Act, as remedial legislation, ought to be interpreted liberally, I do not find the plaintiff to be a member of the specific class of Ontarians sought to be protected by this Act.
While the plaintiff did enjoy a continuous physical presence in Ontario, that is but one factor to consider. The plaintiff’s presence was the result of deception, and he never sought to regularize his illegal status (a status of which he was well aware) until after he was made subject to a deportation order.
The plaintiff appealed. He argued the Judge had applied the wrong test under section 25(1) and further relieved the Superintendent of the onus of proof under section 25(1). In particular, the plaintiff argued that the Superintendent was required to prove, and the Court required to find, that the Plaintiff was ordinarily resident in a particular jurisdiction other than Ontario.
The Court of Appeal disagreed. They found that the motions Judge had applied the correct burden of proof and that the Superintendent had satisfied it. Further, the Court of Appeal found that the Superintendent was not required to lead evidence to show what jurisdiction the plaintiff was ordinarily resident in (for example, his home country of Brazil). It was sufficient to show, for the purposes of section 25(1), that the plaintiff was not ordinarily resident in Ontario at the time of the Accident.
The Court concluded that the motions Judge had fully considered all of the relevant factors. They confirmed that de facto physical presence in Ontario, even if continuous for an extended period, did not automatically establish that an individual was ordinarily resident in Ontario for the purposes of accessing the fund.
The Court of Appeal dismissed the claim, with costs to the defendant.
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