Thanh Nguyen v. Motor Vehicle Accident Claims Fund, 2008 ONFSCDRS 196

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2008 ONFSCDRS 196

FSCO A07-001709

BETWEEN:

THANH NGUYEN

Applicant

and

MOTOR VEHICLE ACCIDENT CLAIMS FUND

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Robert Bujold

Heard: December 5, 2008, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Mr. Nguyen, self-represented, participated by telephone

Robert W. Kerkmann for Motor Vehicle Accident Claims Fund, in person

Issues:

The Applicant, Thanh Nguyen, was injured in a motor vehicle accident on August 22, 2005. He applied for statutory accident benefits under the Schedule¹ from the Motor Vehicle Accident Claims Fund (“MVAC Fund”). MVAC Fund refused payment of any accident benefits to Mr. Nguyen on the basis that he was precluded from proceeding with his claims for accident benefits pursuant to subsections 25(1) and (2) of the Motor Vehicle Accident Claims Act, R.S.O. 1990, c. M.41. The parties were unable to resolve their disputes through mediation, and Mr. Nguyen applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue is:

Is Mr. Nguyen precluded from proceeding with his claims for accident benefits pursuant to subsections 25(1) and (2) of the Motor Vehicle Accident Claims Act?

Result:

Mr. Nguyen is precluded from proceeding with his claims for accident benefits pursuant to subsections 25(1) and (2) of the Motor Vehicle Accident Claims Act.

EVIDENCE AND ANALYSIS:

Mr. Nguyen sustained serious injuries as a result of being struck by a motor vehicle while riding a bicycle in Toronto on August 22, 2005. The motor vehicle fled the scene of the accident. Mr. Nguyen was visiting from Texas at the time of the accident. He had arrived in Canada to visit his girlfriend at the beginning of August with the intention of staying one month.

Mr. Nguyen was taken to Humber River Regional Hospital where he underwent various medical procedures and incurred various medical expenses.

By letter dated January 27, 2006², Mr. Nguyen’s counsel at the time, Franklin Hall, advised MVAC Fund of the circumstances of the accident including Mr. Nguyen’s status as a visitor to Canada from Texas. The letter also advised that Mr. Nguyen did not have access to any other policy of insurance that would provide coverage for accident benefits. The letter enclosed an Application for Accident Benefits dated January 23, 2006 claiming accident benefits from MVAC Fund.

MVAC Fund refused Mr. Nguyen’s application for accident benefits on the basis that he was precluded from proceeding with his claims pursuant to subsections 25(1) and (2) of the Motor Vehicle Accident Claims Act, R.S.O. 1990, c. M.41.

Subsections 25(1) and (2) of the Motor Vehicle Accident Claims Act provide as follows:

Payments to non-residents

(1) 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. 2002, c. 22, s. 147.

Same

(2) The total amount paid out of the Fund in favour of a person who ordinarily resides in a jurisdiction outside Ontario shall not exceed the amount that would be payable in equivalent circumstances under the law of that jurisdiction to a person who ordinarily resides in Ontario. 2002, c. 22, s. 147.

This matter has a relatively long and involved history at the Commission. I will only touch upon a few of the more salient points.

Mr. Nguyen and MVAC Fund proceeded to mediation over various claimed benefits on May 17, 2007. By that time, Mr. Nguyen had a new representative, Nainesh Kotak of Nainesh Kotak Professional Corporation. Mediation of the disputed issues failed and an Application for Arbitration prepared by Mr. Kotak was received August 14, 2007.

I conducted a pre-hearing discussion on December 3, 2007 by telephone conference. At the outset of the pre-hearing, Mr. Kotak requested that he be permitted to withdraw as Mr. Nguyen’s representative due to a breakdown of the solicitor-client relationship. Mr. Nguyen stated that he consented to Mr. Kotak’s request to withdraw as his representative. On the basis of Mr. Kotak’s submissions and Mr. Nguyen’s consent, I permitted Mr. Kotak to withdraw as Mr. Nguyen’s representative.

At that initial pre-hearing, Mr. Nguyen advised of his intention to return to Texas to retain a Texas lawyer. He stated that he expected it to take several months, or perhaps even a year or more, to secure an opinion and return to Canada. It would take him time to raise funds to fly back to Canada. He suggested that the pre-hearing be adjourned without a return date.

I suggested to Mr. Nguyen that an Ontario lawyer should be able to readily secure the opinion of a Texas lawyer regarding the preliminary issue, i.e. whether or not Texas has a public fund similar to Ontario that protects uninsured victims of motor vehicle accidents. Mr. Nguyen was told that he should not have to take the time or incur the expense of personally travelling to Texas. Mr. Nguyen nevertheless returned to Texas following the initial pre-hearing discussion.

Further pre-hearing discussions to address various matters were conducted on March 14, April 4 and October 6, 2008. At the discussion of April 4, 2008, the exact wording of the preliminary issue was agreed upon and the preliminary issue hearing date was set for several months later, December 5, 2008, to accommodate Mr. Nguyen’s request for time to return to Canada to deal with this matter.

Although Mr. Nguyen had indicated his intention to attend in person at the preliminary issue hearing, he contacted the Commission on the morning of the hearing, December 5, 2008, and advised that he was still in Texas. Mr. Nguyen was permitted to participate in the hearing by telephone. Mr. Paul Hoang of Able Translations Ltd. translated between English and Vietnamese for Mr. Nguyen.

At the preliminary issue hearing, MVAC Fund relied on the Affidavit of Todd Wasserman, a lawyer with the firm of Loudon Sterling, dated October 6, 2008, and the Exhibits attached thereto. Loudon Sterling represents MVAC Fund in this proceeding.

MVAC Fund referred to the letter from Franklin Hall that advised that Mr. Nguyen was a visitor to Canada from Texas at the time of the accident.³ MVAC Fund also referred to a written statement purportedly signed by Mr. Nguyen and dated February 17, 2006 confirming that he had been living in Texas since 1993.⁴

Counsel for MVAC Fund also referred to a letter from Glenn J. Williams, legal counsel with the Ministry of the Attorney General, to the Texas Department of Insurance dated February 27, 2007.⁵ The letter from Mr. Williams provides a brief synopsis of the purpose of the MVAC Fund to provide compensation to uninsured persons injured in motor vehicle accidents in Ontario, including “non-residents that reside in a jurisdiction that provides a similar Fund to residents of Ontario that are injured within their jurisdiction, and have no insurance coverage of their own.” The letter also recounts the provisions of subsections 25(1) and (2) of the Motor Vehicle Accident Claims Act and requests “assistance in determining whether the State of Texas has a Fund similar in nature to the Motor Vehicle Accident Claims Fund in Ontario.” A website address for further information on the MVAC Fund was also provided in Mr. Williams’ letter.

The Texas Department of Insurance responded to Mr. Williams by letter dated March 20, 2007.⁶ The letter provides, in part, the following response:

Thank you for your letter dated February 27, 2007 in which you state that Ontario has a Motor Vehicle Accident Claims Fund that provides compensation to uninsured individuals that are injured in motor vehicle accidents that occur in Ontario. You ask if we have a similar fund.

The State of Texas does not have a similar fund. …

Although I did not receive submissions on the question of who bore the onus of proof on the preliminary issue, I find that MVAC Fund led sufficient evidence to shift the evidentiary burden to Mr. Nguyen, even if the ultimate burden did not rest with him.

Mr. Nguyen did not rely on any material in response. Mr. Nguyen did not challenge the evidence that he was ordinarily resident in Texas at the time of the accident nor did he challenge the evidence that Texas does not have a fund similar in character to the MVAC Fund. Mr. Nguyen did not even indicate that he ever spoke to a Texas lawyer or to the Texas Department of Insurance. Mr. Nguyen’s submissions were based entirely on “humanitarian” grounds.

I have great sympathy for Mr. Nguyen. He sustained serious injuries at the hands of an unidentified motorist who fled the scene of the accident. He has unpaid medical bills and he is still unable to work. He described himself as feeling like a homeless person who must depend on the kindness of others to survive.

Unfortunately for Mr. Nguyen, subsections 25(1) and (2) of the Motor Vehicle Accident Claims Act are clear that he does not have recourse to the MVAC Fund unless he ordinarily resides in a jurisdiction that would provide persons who ordinarily reside in Ontario with recourse of a substantially similar character to that provided by the Fund. The question before me on this preliminary issue hearing is straightforward. As I explained to Mr. Nguyen, I am bound to answer the question on the basis of the evidence before me and I have no discretion to consider humanitarian grounds.

On the basis of the evidence before me, I find that Mr. Nguyen was ordinarily resident in Texas at the time of the accident. I further find that Texas does not have legislation that would provide persons who ordinarily reside in Ontario with recourse of a substantially similar character to that provided by the Fund. As a result, Mr. Nguyen is precluded from proceeding with his claims for accident benefits against MVAC Fund pursuant to subsections 25(1) and (2) of the Motor Vehicle Accident Claims Act. Mr. Nguyen’s application is dismissed.

EXPENSES:

MVAC Fund did not seek its expenses of the arbitration.

December 12, 2008

Robert Bujold

Arbitrator

Date