



COURT OF APPEAL FOR ONTARIO

CITATION: Silva v. John Doe, 2016 ONCA 700

DATE: 20160923

DOCKET: C61754

Cronk, Rouleau and Huscroft JJ.A.

BETWEEN

Jarley Silva

Appellant (Plaintiff)

and

John Doe and the Superintendent of Financial
    Services

Respondents (Defendants)

Rebecca Nelson, for the appellant

John Friendly, for the respondent, the Superintendent of
    Financial Services

Heard: September 20, 2016

On appeal from the orders of Justice James F. Diamond of
    the Superior Court of Justice, dated January 20, 2016 and February 8, 2016,
    with reasons reported at 2016 ONSC 307.

By the Court:

Background in Brief

[1]

In April 2011, the appellant was struck by an unidentified motorist
    while he was crossing a Toronto street.  He sustained multiple personal
    injuries as a result of the accident.

[2]

The appellant is a Brazilian citizen.  At the time of the accident, he
    had been living in Ontario, illegally, for approximately nine years.

[3]

The appellant first came to Canada in 1992 using false documents.  He
    worked in Ontario as a cleaner until 1995, when he was apprehended by
    immigration authorities and deported to Brazil.  Under the terms of his
    deportation order, which he did not appeal, he could not return to Canada
    legally unless he obtained authorization to do so under the
Immigration and
    Refugee Protection Act
, S.C. 2001, c. 27.  He did not seek such
    authorization at any time prior to the 2011 accident.

[4]

In 1997 or 1998, the appellant left Brazil and entered the United States
    on a six-month visitors visa.  He remained there for about five years, even
    after his visa expired.  In 2002, the appellant again entered Canada
    illegally.  He claims that, on his re-entry to Canada, he had no intention of
    returning to Brazil and instead intended to remain in Ontario indefinitely.

[5]

The appellant lived continuously in Ontario from 2002 until the date of
    the accident.  From 2002 until April 2011, he did not return to Brazil or
    otherwise leave Canada.  He obtained an Ontario drivers licence, which he
    renewed when required although he never owned a car, and supported himself by working
    at various jobs in the construction industry.  He also registered a drywall sole
    proprietorship in Ontario, applied for a tax number as a non-resident, joined a
    union, and carried out his normal daily activities while living in Toronto.  It
    appears that his only connection to Brazil throughout this period was the fact
    of his Brazilian citizenship and the residence of some family members in that
    country.

[6]

The appellant did not report his earned income to the Canada Revenue
    Agency.  Thus, he paid no taxes in Canada.  He did not possess a Canadian
    social insurance number or an Ontario health card.

[7]

After the accident, the appellant applied for refugee status in Canada. 
    A new deportation order was issued on October 12, 2011.  His refugee
    application was denied in April 2013.  The deportation order took effect in
    June 2013 and the appellant returned to Brazil where he currently lives.

The Litigation

[8]

At the time of the accident, the appellant did not have motor vehicle or
    other insurance to respond to a claim for damages in respect of his injuries
    sustained in the accident.  He therefore sued the unidentified driver (John
    Doe) and the Superintendent of Financial Services (the Superintendent) under
    the
Motor Vehicle Accident Claims Act
, R.S.O. 1990, c. M.41 (the
    Act) for compensation from the Motor Vehicle Accident Claims Fund (the
    Fund).

[9]

The Superintendent defended the action on the basis that the appellants
    claim was statute barred by reason of s. 25(1) of the Act.  That section
    prohibits payments from the Fund to non-Ontario residents save in specified
    circumstances.  Section 25(1) reads:

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. 
    [Emphasis added.]

[10]

Both
    parties moved for summary judgment to determine the appellants entitlement to
    access the Fund.  The motion judge found that the appellant: i) entered Canada
    in 1992 using a fraudulent passport and his brothers visa; ii) worked
    illegally in Canada until deported in 1995; iii) chose to enter Canada
    unlawfully a second time, in 2002, where he remained and obtained employment
    illegally; and iv) knew he could not return to Canada without express authorization
    under the relevant immigration legislation and, therefore, knew or ought to
    have known that his second sojourn in Ontario was temporary.  In these
    circumstances, the motion judge held that the appellants physical presence in
    Ontario was the result of deception and illegality.

[11]

Weighing
    all these factors, including the appellants lengthy continuous presence in
    Ontario, the steps taken or not taken by him to regularize that presence and
    his illegal status in Ontario, the motion judge concluded that the appellant
    was not ordinarily resident in Ontario at the time of the accident within the
    meaning of s. 25(1) of the Act and that his claim against the Fund was
    therefore precluded.  Accordingly, the motion judge dismissed the appellants
    motion for summary judgment and, hence, his claim against the Fund, and granted
    the Superintendents companion motion for summary judgment.

[12]

The
    appellant appeals.  He does not challenge the motion judges findings of fact
    or his conclusion that there is no genuine issue requiring a trial in this
    case.  Rather, he challenges the motion judges holding that payment of his
    claim is barred by s. 25(1) of the Act.

Issues

[13]

During
    oral argument, the focus of the appellants appeal narrowed.  As argued, he
    submits that the motion judge erred: i) by applying the wrong test for
    determining ordinary residency under s. 25(1) of the Act; and ii) by relieving
    the Superintendent of his onus of proof and evidentiary burden under s. 25(1).

[14]

For
    the reasons that follow, we reject these arguments.

Discussion

[15]

There
    is no dispute that the appellant was living in Ontario without proper legal
    status on the date of the accident.  Indeed, he had been doing so for at least
    eight years despite knowing that his entry into Canada was prohibited without
    appropriate authorization.  The narrow, and controlling, issue on this appeal
    is whether, in light of all the circumstances, the appellant was ordinarily
    resident in a jurisdiction outside Ontario when he sustained his injuries,
    within the meaning of s. 25(1) of the Act.

[16]

During
    oral argument, the appellants counsel confirmed that the appellant does not
    challenge the motion judges finding that he was not ordinarily resident in
    Ontario on the date of the accident.  However, the appellant argues that the
    motion judge applied the wrong test under s. 25(1) of the Act because he
    focused on whether the appellant was ordinarily resident in Ontario, rather
    than on whether he was ordinarily resident in another jurisdiction on the date
    of the accident.  In so doing, the appellant says, the motion judge ignored the
    clear language of s. 25(1) and changed the test for ordinary residency
    envisaged by that section.

[17]

We
    disagree.  We see no error in the motion judges interpretive approach to s.
    25(1) of the Act.

[18]

The
    motion judge recognized, correctly, that for the purpose of s. 25 of the Act,
    residency must be determined as of the date of the relevant motor vehicle
    accident.  Further, to defend against the appellants claim based on s. 25(1),
    the Superintendent bore the onus of establishing that s. 25(1) precluded the
    appellants access to the Fund.

[19]

In
    this context, and contrary to the appellants submission, the motion judge held
    that the Superintendent was not required to establish that the appellant was
    ordinarily resident in Brazil or some other specific foreign jurisdiction. 
    Rather, in the motion judges view, the Superintendent [bore] the onus of
    proving that the [appellant] was not ordinarily resident in Ontario (at para.
    35).

[20]

We
    agree.  On a plain reading, s. 25(1) distinguishes between Ontario and
    non-Ontario residents.  It contains no language requiring proof of the precise
    jurisdiction outside Ontario in which a Fund claimant was ordinarily resident
    at the time of the accident in question.

[21]

The
    key to the engagement of s. 25(1) is whether the claimant ordinarily resided in
    Ontario or in a jurisdiction outside Ontario at the time of the accident. 
    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 claimants ordinary residence was outside the
    jurisdiction of Ontario at the relevant time.

[22]

We
    therefore agree with the motion judge that to successfully invoke s. 25(1), the
    Superintendent was required to establish that the appellant did not ordinarily
    reside in Ontario on the date of the accident.  On the motion judges
    uncontested factual findings, the Superintendent met this onus.

[23]

This
    interpretation of the ordinary residency requirement under s. 25(1) accords
    with the purpose of s. 25(1).  The legislative history of s. 25(1), as
    considered by the motion judge, reflects a legislative intention to avoid
    unnecessary payments out of the Fund, which relies on public monies sourced
    through Ontarios Consolidated Revenue Fund.  Section 25(1) contemplates
    payments from the Fund to non-Ontario residents only in limited circumstances. 
    Payments to those persons are permitted only where the claimant resides in a
    jurisdiction that provides ordinary residents of Ontario with reciprocal
    benefits, that is, with recourse of a substantially similar character to that
    provided by [the] Act.  There is no suggestion that this exception applies in
    this case.

[24]

To
    conclude on this issue, we are satisfied that the motion judge fully considered
    all the relevant factors bearing on the appellants ordinary residency.  In
    doing so, he recognized that
de facto
physical presence in Ontario,
    even if continuous, does not automatically establish ordinary residency in
    Ontario for the purpose of access to the Fund.  The appellant was present in
    Ontario illegally, was subject to deportation on discovery and had already been
    deported once.  His continuing and knowing unlawful presence in Ontario, his
    failure to challenge his initial deportation order and his failure to seek to regularize
    his status in Ontario at any point prior to the date of the accident, weighed
    heavily against the conclusion that he ordinarily resided in Ontario within the
    meaning of s. 25(1) at the time of the accident.

[25]

As
    the motion judge observed, at paras. 51 and 52:

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 plaintiffs 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.

[26]

These
    were proper and necessary considerations in this case.

[27]

We
    also reject the appellants contention that the motion judge relieved the
    Superintendent of his onus of proof or improperly lowered his evidentiary
    burden under s. 25(1).  As we have already said, the motion judge clearly
    recognized the Superintendents burden under s. 25(1) and concluded that it had
    been properly discharged on the facts of this case.  This holding was open to
    the motion judge on the evidentiary record before him.

Disposition

[28]

For
    the reasons given, the appeal is dismissed.  The Superintendent is entitled to
    his costs of the appeal, fixed in the agreed amount of $5,000, inclusive of
    disbursements and all applicable taxes.

Released:

SEP 23 2016                                    E.A.
    Cronk J.A.

EAC                                                Paul
    Rouleau J.A.

Grant
    Huscroft J.A.



