Choi v. Motor Vehicle Accident Claims Fund (MVACF), 2025 CanLII 86565

Choi v. Motor Vehicle Accident Claims Fund (MVACF)

Citation: Choi v. Motor Vehicle Accident Claims Fund (MVACF), 2025 ONLAT 25-002802/AABS - PI

Licence Appeal Tribunal File Number: 25-002802/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

Eunjin Choi Applicant

And

Motor Vehicle Accident Claims Fund (MVACF) Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Jun Ki Lee, Counsel

For the Respondent: Sharon E. Warden, Counsel

Heard: By Way of Written Submissions

OVERVIEW

1Eunjin Choi, the applicant, was involved in an accident on January 8, 2025, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the Motor Vehicle Accident Claims Fund, the respondent, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

2The preliminary issue to be decided is:

i. Is the applicant precluded from claiming statutory accident benefits from the respondent, since, at the time of the accident, the applicant was not ordinarily a resident in Ontario as required by s. 25(1) of the Motor Vehicle Accident Claims Act, RSO 1990, c. M. 41 (“MVAC Act”)?

RESULT

3I find that the applicant is precluded from claiming statutory accident benefits from the respondent, since, at the time of the accident, the applicant was not ordinarily resident in Ontario as required by s. 25(1) of the MVAC Act.

ANALYSIS

Law

4Section 25(1) of the Motor Vehicle Accident Claims Act, RSO 1990, c. M. 41 (“MVAC Act”), states that:

(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 resides in Ontario with recourse of a substantially similar character to that provided by this Act.

(4) For the purpose of this section, residence shall be determined as of the date of the motor vehicle accident as a result of which the payment out of the Fund is claimed.

5The term “ordinarily resides” is not defined in the MVAC Act. Both parties refer to the same decisions in their submissions as set out below which I find persuasive.

6The Supreme Court of Canada case of Thomson v. Minister of National Revenue, 1946 CanLII 1 (SCC), [1946] SCR 209 (“Thomson”) sets out the legal test to determine “ordinarily resident”. In Thomson, a majority of the Court ruled that the appellant was ordinarily resident in Canada for the purposes of the Income War Tax Act, because he had deep roots in Canada evidenced by the erection of an expensive house, the retention of servants and his wife’s family ties to New Brunswick, such that he was reasonably considered to ordinarily reside in New Brunswick.

7The Court in Thomson stated at page 224:

“…residing” is not a term of invariable elements, all of which must be satisfied in each instance. It is quite impossible to give it a precise and inclusive definition. It is highly flexible, and its many shades of meaning vary not only in the contexts of different matters, but also in different aspects of the same matter. In one case it is satisfied by certain elements, in another by others, some common, some new.

The expression “ordinarily resident” … 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.

8The Court also determined at page 225 that a person may be a resident whether they live in a place permanently, temporarily or ordinarily resides in a place. Residency is “a matter of degree to which a person in mind and fact settled into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interest and conveniences at or in the place in question.”

9The Court further stated at pages 231 and 232 that:

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.

10The Court also held at page 232 that the determination of a person’s ordinary residence requires that “all of the relevant factors are taken into consideration”.

11The Court of Appeal held in Silva v. John Doe and the Superintendent of Financial Services, 2016 ONCA 700 (“Silva”), that the meaning of the term “ordinarily resides” must be determined by applying the ordinary rules of statutory interpretation and the common law. The Court held that the rules of statutory interpretation required it to give the term “ordinarily resides” a principled meaning within the context of the MVAC Act, noting that it was important to bear in mind the history and purpose of the governing legislation when carrying out this exercise. The Court stated that section 25(1) “reflects the legislative intention to avoid unnecessary payments out of the Fund”… and it “contemplates payments from the Fund to non-Ontario residents only in limited circumstances. Payment 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.” The Court further held that de facto presence in Ontario, even if continuous, will not automatically establish ordinary residence in Ontario for the purpose of access to the Fund.

12In the decision in Young v. Ontario (Minister of Finance) (“Young”), 2003 CanLII 23640 (ONCA), the Court of Appeal considered the scope of coverage provided by the Fund and concluded that the claimant remained ordinarily resident in Ontario despite temporarily living in New Mexico. The Court held that there is a crucial difference between actual residence and ordinary residence.

13Both parties also refer to the Tribunal decisions in Xu v. Motor Vehicle Accident Claims Fund (MVACF), 2019 CanLII 149297 (ON LAT) (“Xu”) and Liu v. Motor Vehicle Accident Claims Fund, 2025 CanLII 3856 (ON LAT) (“Liu”). In Xu, the Tribunal found that the applicant was not entitled to accident benefits from the Fund pursuant to s. 25 of the MVAC Act as she was not ordinarily resident in Ontario at the time of the accident. The Tribunal found that the applicant’s residence was not of a sufficiently permanent nature that she was ordinarily resident in Ontario.

14In Liu, the Tribunal also found that the applicant was not entitled to accident benefits from the Fund pursuant to s. 25 of the MVAC Act, as he was not ordinarily resident in Ontario at the time of the accident. The Tribunal considered the applicant’s ties to his country of origin, his ties to Ontario, his intention as to ongoing residence in Ontario and the willingness of the jurisdiction to accept the applicant as something more than a temporary resident in arriving at the decision.

Background

15The applicant was a pedestrian struck by an unidentified motor vehicle on January 8, 2025, and submitted an application for accident benefits to the respondent.

16The applicant was born in South Korea and is a South Korean citizen. She arrived in Canada from South Korea on June 25, 2024. The applicant was permitted to enter Canada under a temporary Work Permit issued by Immigration Refugees and Citizenship Canada under the Working Holiday category of the International Experience Canada (“IEC”) Program.

17The IEC is a Canadian government program designed to allow individuals to gain valuable international work experience, improve their language skills in English and French and work in Canada.

18The Working Holiday category of the IEC Program is for individuals who want to earn some money in order to travel, don’t have a job offer and want to work for more than one employer or in more than one location in Canada.

19South Korean citizens are permitted to participate in the IEC Working Holiday category twice for up to 24 months per participation.

20On the date of the accident, the applicant was living with a Homestay family since her arrival in Canada on June 25, 2024. A “homestay” is a temporary hospitality arrangement where travelers stay in the home of a local host, typically in exchange for a fee. The applicant had been staying with the Homestay family for a period of approximately six months, at the time of the accident.

21On the Applicant’s Form 3 – Application for Statutory Accident Benefits under s. 6 of the MVAC Act, the applicant answered “No” to question 6: “Are you a Permanent Resident of Ontario?. The respondent then sought further information from the applicant in order to determine whether she qualified for benefits from the respondent in light of s. 25 of the MVAC Act.

22On February 14, 2025, the respondent denied the applicant’s claim for statutory accident benefits pursuant to s. 25 of the MVAC Act.

23The applicant disputes the denial and claims that she was ordinarily resident in Ontario at the time of the accident and is therefore entitled to accident benefits under the MVAC Act.

Parties Submissions

24The respondent submits that on the date of the accident, the applicant was in Canada as a visitor and was only residing temporarily in Ontario. It submits that the applicant was ordinarily resident in her home country of South Korea.

25The respondent submits that on the date of the accident, the applicant was no longer employed, had a South Korean Driver’s Licence, did not have an Ontario’s driver’s licence, was not entitled to health insurance coverage through OHIP and had private health insurance in place for her the duration of her stay in Canada. The respondent submits that the applicant has not provided any evidence to establish that she had an intention to establish ongoing residence in Ontario beyond the period of time permitted by the IEC Canada Working Holiday category. In addition, the applicant has provided no evidence to establish that Canada would be willing to allow the applicant to remain in Canada beyond the period of time permitted by the IEC Canada Working Holiday category.

26The respondent further submits that while the applicant was physically residing in Ontario at the time of the accident, her permanent residence, her ordinarily residence, was South Korea. The respondent argues that the applicant’s settled routine in Ontario did not rise to the level of being permanent in nature, but rather her stay in Ontario was a sojourn stay consistent with the terms of the temporary Work Permit issued to her through the IEC Canada Working Holiday Program that allowed her to enter Canada.

27The respondent also submits that the applicant has not provided any evidence that South Korea offers reciprocal coverage to individuals ordinarily resident in Ontario as provided for in s. 25(1) of the MVAC Act.

28The applicant submits that she was in law and fact, ordinarily resident in Ontario at the time of the accident and is therefore entitled to receive accident benefits under the MVAC Act. She submits that she had a stable residential address for over six months; she had engaged in employment through an internship and was actively seeking further employment with a scheduled interview; she had a Canadian Social Insurance Number; she had a Canadian bank account and filed a 2024 income tax return; she had private health insurance and she accessed medical care in Ontario. She further submits that the cancellation of her return flight to Korea, her continued residence and employment pursuits, indicate that her stay was part of an integrated and permanent routine, not a temporary or exploratory visit. She argues that this demonstrates her intent to remain in Ontario for an extended period.

29The applicant submits that the respondent’s reliance on the Working Holiday program as evidence of temporary intention is misplaced. She submits that her real-life integration into Ontario – employment, housing, cancelled return travel and local tax filing, outweighs the nominal classification of her visa. She argues that the Working Holiday visa under the IEC program provides an initial 24-month work authorization, which can be renewed for an additional 24 months under the bilateral agreement between Canada and South Korea. This allows for up to 48 months of legal residence and work in Canada. She further argues that following the IEC period, the applicant was eligible to transition to an employer-supported LMIA-based work permit and is also eligible to apply for permanent residency under various immigration streams, including those that reward Canadian work experience. These facts demonstrate that the program does not preclude long-term settlement and that the applicant was not merely visiting but actively establishing a permanent life in Ontario.

30The respondent in reply submits that the applicant has not provided any evidence to establish that she had an intention to establish ongoing residence in Ontario beyond the period time permitted by the IEC Canada Working Holiday category. The respondent further submits that the applicant has provided no evidence to establish that Canada would be willing to allow the applicant to remain in Canda beyond the period of time permitted by the IEC Canada Working Holiday category. The respondent submits that while the applicant has made submissions about her employment and her intentions to stay in Ontario for an extended period, no evidence has been provided to support these submissions.

The applicant was not ordinarily resident in Ontario at the time of the accident

31I find that the applicant was not ordinarily resident in Ontario at the time of the accident.

32I find that intention by itself cannot determine ordinarily residency because as stated in Thomson, all the relevant factors need be considered. Moreover, the Court of Appeal in Silva noted that the motion judge determined that the appellant was not ordinarily resident in Ontario, despite the applicant having no intention to return to Brazil and intending to remain in Ontario indefinitely. I find that while intention is a relevant factor to consider, intention by itself cannot determine the issue.

33I acknowledge the applicant’s submissions that she had established a routine in Ontario by working, filing her taxes, having health care benefits, living at the same residence for six months, and had no intentions of returning to South Korea. However, at the time of the accident, the applicant had an indeterminate status in Ontario because she was on a temporary Work Permit. She did not have a permanent residence and was living with a homestay family, which is a temporary hospitality arrangement. She was not employed at the date of the accident and had just completed a short internship from December 16, 2024 to January 5, 2025. While the applicant submits that she was searching for new employment at the time of the accident, she was not actually working on the date of the accident.

34While the applicant submits that it was her intention to stay in Ontario because she had a SIN number, filed her taxes, and had a Canadian bank account, in my view, this indicates that she wanted to ensure that her obligations in Ontario were met and is not sufficient to demonstrate her intent to remain in Ontario for an extended period.

35With respect to the applicant’s submission that she had cancelled the return portion of her round-trip ticket that had been booked upon entry which confirms her intention to stay in Ontario, I find that she has provided no explanation as to why she cancelled the ticket or any particulars surrounding this ticket. I further find that based on the decision in Silva, de facto presence in Ontario, even if continuous will not automatically establish ordinarily residence in Ontario for the purpose of access to the Fund.

36I find that the applicant’s submissions about having private healthcare coverage on the date of the accident is not evidence that the applicant was integrated into Ontario’s healthcare system. I find that the applicant was required to have this private healthcare coverage under the IEC Working Holiday category for the duration of her stay. I find that the applicant did not have an Ontario health card and was not eligible for OHIP coverage, and therefore was not integrated into Ontario’s healthcare system which is one factor to consider in determining if a person is “ordinarily resident”.

37I find that while the applicant submits that the Working Holiday visa under the IEC program provides for up to 48 months of residence and work in Canada, the applicant has not directed me to any evidence in support of her submissions that it was her intention to stay in Ontario for this duration. I further agree with the respondent’s submission that potential eligibility to do certain things in the future, is not relevant to the determination as to whether the applicant is entitled to receive accident benefits on the date of the accident. I find that at the time of the accident, she had a temporary work permit under the Working Holiday Category of the IEC Program and had resided in Ontario for six months.

38I do not find that the applicant has pointed me to any further evidence to support her submission that she had integrated her life and intended to remain in Ontario. I do not find that her return flight, continued residence, and employment pursuits indicate that her stay was part of an integrated and permanent routine, rather than a temporary or exploratory visit.

39While I am not bound by previous Tribunal decisions, I find the four factors relied upon in Liu persuasive. Based on these factors, I have determined that at the time of the accident, the applicant was not ordinarily resident in Ontario because she had ties to South Korea (being a citizen and having family there), her ties to Ontario were temporary because she was on a temporary Work Permit, and that she has not directed me to any evidence as to how long she intended to remain in Ontario or the length of time that she intended to participate in the IEC Working Holiday category. Therefore, the applicant’s settled routine in Ontario did not rise to the level of being permanent in nature, but rather her stay in Ontario was a sojourn stay as set out in the decision in Thomson.

40I further find that the applicant has not pointed me to any evidence to support that South Korea offers reciprocal coverage to ordinarily residents in Ontario as provided for in s. 25(1) of the MVAC Act. While the applicant claims that she had private health insurance from Samsung Fire & Marine, she has not directed me to any evidence of the reciprocal coverage in South Korea.

ORDER

41For the reasons outlined above, I find that the applicant is precluded from claiming statutory accident benefits from the respondent, since, at the time of the accident, the applicant was not ordinarily resident in Ontario as required by s. 25(1) of the MVAC Act. The application is dismissed.