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Injury claim by illegal immigrant denied: court

Cover Story
|Written By Alex Robinson

The Court of Appeal has ruled an illegal immigrant could not collect a personal injury claim from a provincial insurance fund after he was hit by an unidentified driver while crossing the street in 2011 because “he was not ordinarily resident in Ontario” at the time.

Matthew Owen says a recent ruling shows that ‘it’s hard to assert you’re an ordinary resident if you’re concealing your presence in the jurisdiction.’Photo: Robin Kuniski

Jarley Silva, a Brazilian citizen, had been living in the country illegally for years and had no insurance at the time of the accident, which left him with a shattered left ankle and a fracture to his right knee.

He brought a claim against the unnamed driver and the Superintendent of Financial Services under the Motor Vehicle Accident Claims Act for compensation from the province’s Motor Vehicle Accident Claims Fund.

The fund provides compensation to people who have experienced injury or property damage in an accident with an unidentified driver.

At issue in the case was s. 25(1) of the act, which bans payouts from the fund for someone who “ordinarily resides in a jurisdiction outside Ontario,” except for specific circumstances. A non-

resident can get paid out if the jurisdiction in which he or she is a resident provides them with recourse of a “substantially similar character” to that provided by the act.

In Silva v John Doe, both Silva and the defendants moved to have the case determined by summary judgment.

The judge ruled in favour of the defendants, saying Silva was not ordinarily resident in Ontario at the time of the accident and that his presence in the province was the result of “deception and illegality.”

Silva appealed the decision, saying the motion judge did not apply the right test under s.  25(1) of the act.

Rebecca Nelson, of Azevedo & Nelson Injury Law, who represented Silva on his appeal, argued that rather than using a test to determine whether Silva was an ordinary resident in Ontario, the court should have looked at whether he was ordinarily resident in Brazil.

Nelson says that the plain wording of the legislation only required the judge to determine whether Silva was a resident of a jurisdiction outside of Ontario.

 “That is an important distinction, because the only reason really he is not considered ordinarily resident in Ontario is because he was here illegally, but there was very little evidence that he was ordinarily resident in any other jurisdiction, certainly not in Brazil,” says Nelson.

And if there was no evidence to show Silva was an ordinary resident in Brazil, he should have had full access to the fund, Nelson says.

The Court of Appeal rejected the argument, saying the key to the engagement of s. 25(1) is simply whether Silva resided in the province at the time.

“Basic logic dictates that proof that a claimant did not ordinarily reside in Ontario at the time of the accident in question, as conceded in this case, necessarily means that the claimant’s ordinary residence was outside the jurisdiction of Ontario at the relevant time,” the decision said.

The court added the exception that payments be made to those who are residents of jurisdictions that provide reciprocal benefits to Ontario residents does not apply to Silva’s case, as Brazil does not do so.

“There is no language in the Act that requires the superintendent to prove the precise jurisdiction outside of Ontario — the superintendent need only prove that the applicant’s ordinary jurisdiction was not Ontario,” says Wendy Moore Mandel, a personal injury lawyer with Thomson Rogers, who was not involved in the case.

Lawyers say the decision reaffirms the old maxim that the law does not like to reward people who have been involved in illegal behaviour.

“It’s hard to assert you’re an ordinary resident if you’re concealing your presence in the jurisdiction,” says Matthew Owen, a lawyer with Zarek Taylor Grossman Hanrahan LLP, who sits on his firm’s appellate advocacy group.

Nelson says the decision was policy motivated.

“I think it reflects a general policy that public monies in Ontario are meant to benefit Ontario residents,” she says.

Silva first came to Canada using false documents in 1992 and worked in Ontario as a cleaner until 1995 when he was caught and deported by immigration authorities. He returned illegally in 2002 and lived in Toronto for many years, working construction jobs. He joined a union, applied for a tax number as a non-resident and even obtained an Ontario driver’s licence.

He, however, did not pay taxes during this time in Canada and did not have a social insurance number or an Ontario health card, the decision said.

Silva applied for refugee status after the accident happened, but he was later deported in 2013. If he had applied for the status before the accident happened or challenged the initial deportation order, his claim would have had a better chance of success, says Owen, who was not involved in the case.

“The decision may have been different even if he had initially entered Ontario illegally and the refugee proceedings were proceeding,” Owen says.

While Silva will not be able to access the fund, Owen says the courts left the door open to the possibility that someone who entered the province illegally might still be able to claim from it if their status was slightly different. The Financial Services Commission of Ontario, which administers the fund, was unable to provide comment at press time.

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