Silva v John Doe, 2016 ONSC 307

Section 25(1) of the Motor Vehicle Claims Act, R.S.O 1990, c.M41 (Act) precludes payments out of the Motor Vehicle Accident Claims Fund (Fund) to any person “who ordinarily resides in a jurisdiction outside Ontario” at the time of the motor vehicle accident. At issue in this case was whether the plaintiff was deemed to ordinarily reside outside of Ontario under the Act, precluding him from bringing this claim.

The plaintiff is a citizen of Brazil who entered into Canada illegally in 1992. In 1995, he was deported back to Brazil. In October 2002, the plaintiff re-entered Canada without authorization. He remained in Canada illegally for the following nine years where he obtained employment, rented an apartment, and also obtained an Ontario driver’s license. The plaintiff never paid any income taxes to the Canada Revenue Agency. In July 2013, after a failed refugee status application, the plaintiff was deported back to Brazil for a second time where he continues to reside.

On or about April 16, 2011, while still in Ontario, the plaintiff was hit by an unidentified driver in Toronto. The plaintiff suffered personal injuries. On October 21, 2011, the plaintiff commenced this action against the unidentified driver and the Superintendent of Financial Services (Superintendent) under the Act for compensation out of the Fund. The Superintendent defended this proceeding on the basis that the plaintiff is deemed to “ordinarily reside” outside Ontario under the Act. The plaintiff argued that ordinary residence does not have to be lawful residence.

The term “ordinarily resides” is not defined in the Act. The Court stated that it must be given a principled meaning within the context of the Act and the purpose of the governing legislation must be taken into account when defining the term. In Diamond J.’s opinion, the Ontario Legislature did not enact the statute for the purpose of allowing people the opportunity to “reap the benefits of ordinary residency in Ontario via a clandestine life through the passage of time.”

The Court stated that after two deportations, it was certainly not Canada’s intention to accept the plaintiff as a resident. After being deported from Canada the first time, the plaintiff ought to have known that he could not return to Canada without first proceeding through the proper legal channels. Diamond J. found that while the plaintiff did enjoy a continuous physical presence in Ontario, that is only one factor to consider. His presence in Canada was the result of deception and he never even tried to obtain legal status until after the accident.

The Court ultimately held that the plaintiff was not ordinarily resident in Ontario as of the date of the accident. According to Diamond J., the plaintiff was not a member of the specific class of Ontarians sought to be protected by the Act. As a result, summary judgment was granted in favour of the Superintendent and the plaintiff’s claim was dismissed.

What the Insurer Should Know

When considering with the phrase “ordinarily resident in Ontario” the courts will look closely at whether the individual has legal status in Ontario, not just whether they have a physical presence in the province.

Mitch Kitagawa	Kentt Coburn, Articling Student