Case: Silva v. John Doe, 2016 ONCA 700 (CanLII)

Keywords: Personal Injury; Motor Vehicle Accident Claims Act, R.S.O. 1990, c. M.41; Ordinarily Resident; Motor Vehicle Accident Claims Fund


The Appellant, Mr. Jarley Silva is struck by an unidentified motorist while crossing a Toronto street. He sustains multiple personal injuries. Mr. Silva is a Brazilian citizen living in Ontario illegally.

Mr. Silva is known to immigration authorities – he was deported back to Brazil previously. In 2002 Mr. Silva once again enters Canada illegally (this time with the intention of remaining indefinitely). From 2002 until the accident, the Appellant lives continuously in Ontario. He does not return to Brazil or otherwise leave Canada. He supports himself by working various jobs in the construction industry.

While living in Ontario, Mr. Silva:

  • registers a drywall sole proprietorship;
  • applies for a tax number as a non-resident;
  • joins a union;
  • obtains an Ontario driver’s licence;
  • does not report earned income to Canada Revenue Agency;
  • does not pay taxes; and
  • does not possess either a Canadian social insurance number or an Ontario health card. (See paras. 5-7).

Following the accident, Mr. Silva applies for refugee status. His application is denied April 2013. A deportation order takes effect in June 2013 and the Appellant returns to Brazil.

As the Appellant does not have motor vehicle or other insurance, he sues the unidentified driver “John Doe” and the Superintendent of Financial Services under the Motor Vehicle Accident Claims Act, R.S.O. 1990, c. M.41 for compensation from the Motor Vehicle Accident Claims Fund.

The Motions Judge finds the Appellant’s physical presence in Ontario is the result of deception and illegality. As such, the Appellant is not an “ordinary resident” within of the meaning of s. 25(1) of the Motor Vehicle Accident Claims Act, R.S.O. 1990, c. M.41

On appeal, the Appellant submits the Motions Judge erred as follows:

  • by applying the wrong test for determining ordinary residency under s. 25(1) of the Act; and
  • by relieving the Superintendent of his onus of proof and evidentiary burden under s. 25(1).

The Court of Appeal rejects both arguments, dismisses the appeal, and awards costs to the Superintendent in the amount of $5,000 (inclusive of disbursements and all applicable taxes).


For the Court of Appeal, the issue 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 Motor Vehicle Accident Claims Act, R.S.O. 1990, c. M.41. (See para. 15).

Section 25(1) of the Act provides as follows:

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.

On appeal, it was argued the Motions Judge 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. Finding no error with the Motions Judge’s “interpretive approach”, the Court of Appeal confirmed – “…residency must be determined as of the date of the relevant motor vehicle accident.” (See para. 18).

For the Court of Appeal, a plain reading of s. 25(1) distinguishes between Ontario and non-Ontario residents. It contains no language which would require proof of the precise jurisdiction outside Ontario in which a Fund claimant was ordinarily resident at the time of the accident. (See para. 20).

Moreover, for the Court of Appeal “basic logic dictates” proof a claimant does not ordinarily reside in Ontario necessarily means that claimant is ordinarily resident outside the jurisdiction of Ontario at the relevant time. (See para. 21).

The Court of Appeal also stated the purpose and legislative history of s. 25(1), as considered by the Motions Judge, reflects an intention to avoid unnecessary payments out of the Fund. Payments to non-Ontario residents should be provided only in limited circumstances (as in where the claimant resides in a jurisdiction providing ordinary residents of Ontario reciprocal benefits).

In other words, de facto presence in Ontario, even if continuous, will not automatically establish ordinary residency in Ontario for the purpose of access to the Fund. (See para. 24).

Counsel for the Appellant: Rebecca Nelson (Azevedo & Nelson, Toronto)

Counsel for the Respondent: John Friendly (Financial Services Commission of Ontario, North York)

Discuss on CanLii Connects