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 visitor’s 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 driver’s 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 appellant’s 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 appellant’s entitlement to access the Fund. The motion judge found that the appellant: i) entered Canada in 1992 using a fraudulent passport and his brother’s 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 appellant’s physical presence in Ontario was the result of deception and illegality.

[11] Weighing all these factors, including the appellant’s 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 appellant’s motion for summary judgment and, hence, his claim against the Fund, and granted the Superintendent’s companion motion for summary judgment.

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

Issues

[13] During oral argument, the focus of the appellant’s 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 appellant’s counsel confirmed that the appellant does not challenge the motion judge’s 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 judge’s 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 appellant’s claim based on s. 25(1), the Superintendent bore the onus of establishing that s. 25(1) precluded the appellant’s access to the Fund.

[19] In this context, and contrary to the appellant’s 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 judge’s 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 claimant’s 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 judge’s 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 Ontario’s 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 appellant’s 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 plaintiff’s 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 appellant’s 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 Superintendent’s 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.”