*Since the writing of this blog the decision has been affirmed (not overturned).

Sting laments about his alien status, as a foreigner in a strange land, in the eponymous song “An Englishman in New York.”

Justice James Diamond was confronted with  similar circumstances in Silva v. John Doe 2016 ONSC 307 (CanLII), as it related to the Plaintiff’s claim for unidentified motorist coverage from the Motor Vehicle Accident Claims Fund while an illegal resident. 

The background facts were uncontested as the plaintiff had initially entered Canada illegally in 1992 as a visitor, but was deported in May, 1995. In October, 2002, he re-entered Canada through the United States and remained here illegally for over eight years. He earned an income working illegally in labour and even managed to obtain an Ontario Driver’s licence. However, he had not owned nor, apparently, operated a vehicle. Accordingly, he did not have any motor vehicle insurance.

As part of his employment activities, the Plaintiff set up a sole proprietorship, J.P.S. Taping & Drywall Co. The evidence disclosed that when applying for a tax number through the CRA he represented that he was not a Canadian resident. Despite this application, the plaintiff had never paid any taxes to the CRA. He did not have any credit or debit cards and operated only in cash. He did not have OHIP coverage.

On April 16, 2011, he was struck by an unidentified motorist while crossing the street as a pedestrian in Toronto. His ankle was shattered, and surgically repaired with the insertion of hardware. There was not an insurance policy available to respond to the claim and the plaintiff commenced proceedings against the Superintendent of Financial Services pursuant to the Motor Vehicle Claims Act R.S.O. 1990 c.M41 (‘Act’) for compensation out of the Fund.

Among other pleadings, the Superintendant defended the matter under section 25(1) of the Act, which states:

“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”.

It was agreed that Brazil did not provide persons who ordinarily reside in Ontario with recourse of a substantially similar character to that provided in the Act.

Section 25(4) of the Act stipulates that residence is to be determined as of the date of the motor vehicle accident. After the accident, the plaintiff unsuccessfully claimed refugee status and was eventually deported again. By the time the matter came before Justice Diamond, he was living in Brazil.

On a summary judgment motion, Justice Diamond was asked to evaluate which jurisdiction the Plaintiff was ordinarily residing in at the time of the accident so as to determine whether he was barred from recovery pursuant to section 25(1)  of the Act.

Importantly, a Supreme Court Case from 1946, Thomson v. Minister of National Review [1946] S.C.R. 209, stood for the proposition that the term ‘ordinary resident’ in any given legislation ought to be interpreted with reference to the particular statute containing the term.

Here, Justice Diamond held that the purpose of the Act here was remedial, so as to confer a benefit upon a specific class of Ontarians: those who had suffered damages where no proper insurance coverage existed.

Justice Diamond considered that Canada had not intended to accept the Plaintiff as a resident. Moreover, he was certainly aware he could not renter Canada again without proceeding through the proper legal channels but chose to enter unlawfully instead. He earned income and paid no taxes. Despite his physical presence in the jurisdiction, it was the result of deception, and the Plaintiff knew or ought to have known that his second illegal stay in Canada was on a daily, temporary basis since he stood to be deported at any time. 

Given these findings, the Plaintiff was found not to fall within this class of Ontarians sought to be protected by the Act and was not ordinarily resident in Ontario at the time of the accident. 

It would be tempting to note that the plaintiff here got stung with this claim, where he ended up being deported concurrent to his claims for unidentified coverage.  In hindsight, maybe he would have been better off writing a song about his exploits rather than sue…..