Ontario Court decides that an Illegal Immigrant not entitled to claim Damages from MVACF

The Motor Vehicle Accident Claims Fund (MVACF) is a payor of last resort for anyone in Ontario who is uninsured and injured in a motor vehicle accident.  However, in a recent trial, Silva v. John Doe, 2016, the Ontario Court of Appeal decided that the plaintiff was not entitled to compensation under the MVACF because he is an illegal immigrant.

The plaintiff, Jarley Silva, was struck by a hit-and-run driver as a pedestrian, while walking across a Toronto street. The 'at fault' driver was never identified and Mr. Silva sustained multiple injuries in the accident. 

The plaintiff is a citizen of Brazil and on the date of the car accident, had been residing in Ontario illegally for about nine years. He first arrived in Canada in 1992, using false documents and worked for a time until 1995 when his illegal status was discovered and he was deported back to Brazil.  A term of his deportation order was that he could not return to Canada unless he obtained legal authorization under the Immigration and Refugee Protection Act, which he failed to do.  In 2002, the plaintiff entered Canada illegally again and never left the country until the date of the accident.

In the years prior to his accident, Mr. Silva worked at various construction jobs while living in Toronto; he never reported his income or paid taxes; and he never obtained an Ontario health card or Canadian social insurance number.  The plaintiff applied for refugee status after the accident but was denied and a new deportation order was issued.  He was deported in June of 2013 and returned to Brazil. 

Because he did not have any type of insurance to respond to damages resulting for his injuries, Mr. Silva sued the Superintendent of Financial Services under the Motor Vehicles Accident Claims Act and ‘John Doe’ (the unidentified driver) for compensation from ‘the Fund’ (MVACF).  The Superintendant defended the claim on the basis that the plaintiff’s action was statute barred under the Act because non-Ontario residents are prohibited from receiving payments except in specified exceptional cases, as follows: 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 persons who ordinarily reside in Ontario with recourse of a substantially similar character to that provided by this Act.  

The Ontario Court of Appeal found that under the Act, section 25, the Superintendent is not required to prove that Mr. Silva was normally a resident of Brazil but only that he is ordinarily not a resident in Ontario, as the Act clearly distinguishes between Ontario residents and non-Ontario residents.  Also, compensation is permitted only when the claimant lives in a jurisdiction that will provide residents of Ontario with reciprocal benefits, similar to those provided in the Act, and there is no evidence that this applies in this case.

The appeals judge agreed that the plaintiff’s “presence in Ontario was the result of deception and illegality” and further, there is no indication that the plaintiff is a member of the specific group of Ontarians who are intended to be protected by the Act.  Thus, having failed to acquire legal immigration status, Mr. Silva’s claim for damages was rejected by the court.