Oksana Schevchuk v. Motor Vehicle Accident Claims Fund, 2009 ONFSCDRS 30

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2009 ONFSCDRS 30

FSCO A05-002437

BETWEEN:

OKSANA SCHEVCHUK

Applicant

and

MOTOR VEHICLE ACCIDENT CLAIMS FUND

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator John Wilson

Heard: May 23, 2008, July 31, 2008 and August 1, 2008, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Arvin Gupta for Ms. Schevchuk

Robert W. Kerkmann for Motor Vehicle Accident Claims Fund

Issues:

The Applicant, Oksana Schevchuk, was injured in a motor vehicle accident on October 20, 2004. She applied for accident benefits from Motor Vehicle Accident Claims Fund (“MVAC”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Schevchuk 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:

1. Is Ms. Schevchuk precluded from claiming statutory accident benefits from MVAC, since, at the time of the accident she was not “ordinarily resident” in Ontario as required by section 25(1) of the Motor Vehicle Accident Claims Fund Act?

Result:

Ms. Schevchuk is precluded from claiming statutory accident benefits from MVAC, since, at the time of the accident she was not “ordinarily resident” in Ontario as required by section 25(1) of the Motor Vehicle Accident Claims Act.

EVIDENCE AND ANALYSIS:

A decision was issued in this matter on July 18, 2008, with reasons to follow. The following are the reasons for that decision.

Ms. Schevchuk was in Ontario on October 20, 2004 when she was involved in a motor vehicle

accident. Ms. Schevchuk was in an anomalous position at the time of the motor vehicle accident

that gave rise to this arbitration. While the accident took place in Ontario, Ms. Schevchuk was a

national of Kazakhstan, and her status in Canada was unclear. Indeed it is clear from the

evidence that Ms. Schevchuk was the target of efforts by the Canadian government to have her

removed from Canada, efforts which eventually succeeded.

Ms. Schevchuk was not a named insured under an Ontario Motor Vehicle Accident Policy, and

the circumstances of the accident were such that any claim for accident benefits would have to be

made to MVAC. As a result, section 25(1) of the Motor Vehicle Accident Claims Act

(MVAC Act) governed her claim for accident benefits.

Payments to non-residents

25(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.²

A hearing was held on May 23, 2008 to deal with the issue of whether Ms. Schevchuk’s claim

for accident benefits against MVAC is barred by reason of section 25(1) of the MVAC Act.³

By way of background, Ms. Schevchuk had certainly tried to become a resident of Ontario

and had lived here before being involuntarily returned to Kazakhstan following the accident

which gave rise to this dispute.

At the time of the accident Ms. Schevchuk was still physically present in Canada but lacked legal

status in Canada. There is no dispute that she was never accepted as a refugee and was ultimately returned to Kazakhstan after the accident.

A notice of Decision issued by the Immigration and Refugee Board dated June 3, 2003

rejected Ms. Schevchuk’s claims for refugee status, which apparently formed the basis of her

claim to residence in Canada.

The order of the Federal Court dated October 6, 2003, filed in evidence, made it clear that an

application made by Oksana Schevchuk for judicial review of a decision of the Convention

Refugee Determination Division of the Immigration and Refugee Board demonstrated that she had exhausted any appeal, and that she had been refused refugee status. Certainly there was no evidence filed that would suggest the contrary.

The exact nature and the timing of the removal efforts are not absolutely clear due to

Ms. Schevchuk’s consistent refusal to consent to the release of the Canadian Border Services file and the immigration file relating to her status in Canada at the time of the accident.

What is known is that on October 22, 2004, some few days after the motor vehicle accident, the

Canadian Border Services Agency issued a letter addressed to Ms. Schevchuk stating that her

removal from Canada was scheduled for November 9, 2004, at Niagara Falls.

While it is quite possible that some interim procedure might have taken place to allow

Ms. Schevchuk to remain in Canada until the date of the expulsion order, her unexplained refusal to execute the necessary releases to allow for the production of the Border Services file suggests that this is not the case. I find that Ms. Shevchuk was not entitled to reside in Canada and therefore was not a legal resident of Canada at the time of the motor vehicle accident.

The legality (or otherwise) of Ms. Schevchuk’s ongoing presence in Canada, does not

alone determine her capacity to make this claim. Ordinary residence, not legal residence is the test to be applied.

While at the time of the hearing, Ms. Schevchuk was a resident of Kazakhstan, there was no

question that at the time of the accident she had established some sort of presence in Canada, but it was not at all clear that her presence in Canada was sufficient to be characterized as

“ordinarily resident.”

It is clear, however, that it would have been her intention to remain in Canada, had she not

been ordered expelled. The question to be decided is whether a physical presence in Canada combined with an intention to remain in Canada can comprise being “ordinarily resident” in Canada.

It is of some importance that the Legislature chose not to simply use the word “resident” but

modified it through the use of the word “ordinarily.”

The Canadian Oxford Dictionary defines “resident” as follows:

a. permanent inhabitant (of a city, neighbourhood building, etc.) b. a bird belonging to a species that does not migrate…

It defines “ordinary” as:

a. regular, normal, customary, usual (in the ordinary course of events) b. boring; commonplace…

The phrase «qui réside ordinairement» is found in the French version of the Act.

«Résider» is defined in the Petit Robert as:

Être établi d’une manière habituelle dans un lieu; y avoir sa résidence.

«Ordinairement» is defined as:

D’une manière ordinaire, habituelle.

Common among these definitions is a sense that residency involves establishing one’s self in a somewhat permanent and continuous manner in a certain region or country.

It is a principle of statutory interpretation that there is a presumption against tautology. In other

words, the legislature intends that every word used in a statute has some meaning. Clearly with

the addition of the word “ordinarily” the phrase “ordinarily resident” is intended to mean something more than merely “resident.”

Although the MVAC Act itself contains no definition of “ordinarily resident” the phrase is used in a variety of other contexts, in different acts, and has been interpreted from time to time by the courts.

The Ontario Court of Appeal and the Ontario Supreme Court have both dealt with the issue of residency. In the two following matrimonial cases, regulated by the Divorce Act, R.S.C. 1970,

c. D-8, the term “ordinarily resident” has been dealt with in the following manner:

[A] person ordinarily resident in a Canadian Province may leave that Province and actually reside elsewhere for special purposes, and yet continue to be ordinarily resident in such Province.

The test would appear to be: “Where is the petitioner’s real home?”⁴

The theory of residency, as expressed by Evans J.A. in MacPherson v. MacPherson is as follows:⁵

[A] person may be ordinarily resident in a Province without being actually resident therein. In my opinion, actual residence connotes a degree of physical presence, not required to establish ordinary residence.

There is a variety of judicial opinions expressed as to the exact nature of “ordinary residence.”

In Thomson v. Canada (Minister of National Revenue-M.N.R.)⁶, the Supreme Court of Canada considered the meaning of the words “ordinarily resident” in the context of taxation.

Rand J. stated that:

The expression “ordinarily resident” carries a restricted signification, and although the first impression seems to be that of preponderance and time, the decisions on the English Act reject that view. It is held to mean residence in the course of the customary mode of life of the person concerned, and it is contrasted with special or occasional or casual residence. The general mode of life is, therefore, relevant to a question of its application.

And further on that page:

But in the different situations of so-called “permanent residence”, “temporary residence”, “ordinary residence”, “principal residence” and the like, the adjectives do not affect the fact that there is in all cases residence; and that quality is chiefly a matter of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question. It may be limited in time from the outset, or it may be indefinite, or so far as it is thought of, unlimited.

Estey J. also stated:

A reference to the dictionary and judicial comments upon the meaning of these terms indicates that one is “ordinarily resident” in the place where in the settled routine of his life he regularly, normally or customarily lives. One “sojourns” at a place where he unusually, casually or intermittently visits or stays. In the former the element of permanence; in the latter that of the temporary predominates.

Since the determination of a person’s ordinary residence requires that “all of the relevant factors are taken into consideration”⁷, any analysis of Ms. Schevchuk’s residency status should take into consideration not only her physical presence in the country, her intention as to residency, but also the question of whether her intentions coincided with the willingness of her host country to accept her as a resident.

Certainly intention by itself cannot determine ordinary residency. While perhaps a determining factor in domicile, intention is but one of a myriad of indicia of residential status.

The jurisprudence has been fairly consistent that where a person is unlawfully in Canada he or she cannot be said to be ordinarily resident.⁸ This approach is certainly in line with the legal maxim ex turpi causa non oritur actio (which suggests that one should not be able to profit from one’s own wrongful act). In this case, Ms. Schevchuk should not be able to claim ordinary residence based on her own, apparently wrongful refusal to leave when her refugee claim was denied.⁹

The Supreme Court has held that a “person can have only one place of ordinary residence and it cannot be lost until another is gained.”¹⁰ Despite her best efforts Ms. Schevchuk did not succeed in persuading Canada to accept her as a legal resident. As a result, her ordinary residence in Kazakhstan was not displaced by her temporary sojourn in Canada.

If Ms. Schevchuk ever met the criteria for being ordinarily resident in Ontario, that status was

terminated by the process to expel her from Canada, and the exhaustion of her remedies in relation to the removal order.

I have no evidence before me to suggest that Ms. Schevchuk’s domicile state of Kazakhstan

offers any reciprocal coverage to Ontario residents as provided for in section 25(1) of the

MVAC Act.

Consequently Ms. Schevchuk is barred from proceeding with her claim and the arbitration

commenced against MVAC is dismissed.

EXPENSES:

If the parties are unable to agree on expenses, I may be spoken to on that issue.

February 27, 2009

John Wilson

Arbitrator

Date