Illegal Immigrant Not Entitled to Compensation from public funds for Car Accident

October 06, 2016, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

In a recent Ontario Court of Appeal decision an illegal immigrant was denied compensation for injuries  sustained in a motor vehicle accident. It has reinforced the legal limitation placed on immigrants in Canada who have no legal status, and should be a cautionary note for illegal immigrants and the risks they open themselves to.

Justice James Diamond, Ontario Superior Court, heard the case in January 2015. The case considered the plight of Mr. Jarley Silva, a Brazilian man, who entered Canada in 1992 with a fraudulent passport. He lived in Canada partly in hiding. He had a driver’s licence, his own drywall company, belonged to a trade union, but did not own a car or have insurance, he never declared income or payed income tax. He had no credit card or SIN number, and did not belong to OHIP.

In 1995 he was deported but returned illegally shortly afterwards, coming back to his illegal life in Canada. In 2011 he was hit by car while crossing the street in Toronto. The driver of the car was never identified. Mr. Silva’s injuries including a broken knee and ankle. The injuries required surgery and lengthy recovery. His illegal status was now revealed.

As a result of the car crash he filed a claim for protection as a refugee and an insurance claim under the Motor Vehicle Accident Claims Fund (MVACF) since the driver who hit him was never caught. To his misfortune, his refugee claim was denied in 2013 and he was deported again to Brazil. His insurance claim continued in court however. The resulting court case was an interesting one.

The government of Ontario sought to have the claims for compensation from the MVACF dismissed as the fund had been created to compensate people who ‘ordinarily reside in Ontario’. Lengthy debate was begun about the term ‘resident’ and whether a person who has lived in shadows, illegally in the country, could be considered a resident. The government argued that Mr. Silva was only in Ontario due to deception, and that his being here illegally did not constitute ordinary residence. ON that basis Justice Diamond ruled that the law had not been created to entitle a person to “the opportunity to reap the benefits of ordinary residency in Ontario via a clandestine life through the passage of time.”

Mr. Silva appealed his decision to the Court of Appeal which upheld the decision, ordering Mr. Silva to pay costs to the government as well.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

The opinions expressed here, while intended to provide useful information, should not be interpreted as legal recommendations or advice.