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No Compensation for Illegal Immigrant Struck by Uninsured Drivers

The government of Ontario created the Uninsured Motorist Fund in order to provide a base minimum of insurance coverage for Ontario residents, or residents of reciprocal provinces, who are involved in a motor vehicle accident where the driver and/or owner of the defendant car cannot be identified. The fund is a useful last resort for people who are seriously injured in a car accident, where there is no other source of insurance available to compensate for pain and suffering, as well as medical rehabilitation and loss of income. However, we now know that there is at least one class of injured people who may not be able to access even this most basic form of insurance coverage. In Silva v. John Doe the Ontario Court of Appeal pronounced that if you are an illegal immigrant, you will not be able to access this Uninsured Motorist Fund.

Mr. Silva was hit by an unidentified driver while crossing the street in 2011. Mr Silva is originally from Brazil and had been living in Canada illegally for approximately 9 years. He had no insurance at the time of the accident and he was left with a shattered left ankle and a fracture to his right knee. Any other resident would have been able to make a claim under the Motor Vehicle Accident Claims Act. Pursuant to the Act, the Ministry of Finance administers the Fund in the public interest. The Act permits legal proceedings against the Superintendent when the driver, owner and vehicle which cause injuries are all unidentified. Claims against the Fund are limited to a maximum of $200,000.00.

Mr. Silva commenced proceedings against the Superintendent for compensation out of the Fund. However, it was not simple for Mr. Silva. The issue the Court of Appeal had to deal with was whether or not section 25 (1) of the Act would ban Mr Silva from claiming money from Ontario as he not considered to be a resident of this province or any other reciprocal province.

Section 25 (1) of the Act states:

  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. [emphasis added]

The Court ruled that he was not ordinarily resident in Ontario as of the date of the accident and could therefore not obtain any compensation out of the Fund. The Court also noted that de facto presence in Ontario, even if continuous, will not automatically establish ordinary residency in Ontario for the purpose of access to the Fund. It is unfortunate that Mr. Silva has suffered serious personal injuries in Ottawa however it is clear that this decision reflects a general policy that public monies in Ontario are meant to benefit Ontario residents and not those who appear in front of the Court with dirty hands.

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