Thursday, 6 October 2016

Long-time but Illegal Resident Found not to be “Ordinarily Resident”

Last month the Ontario Court of Appeal ruled, in Silva v. John Doe and the Superintendent of Financial Services 2016 ONCA 700, that a man who resided in Ontario continuously for nine years, without proper legal status, with few ties to anywhere else, is not considered to “ordinarily reside in Ontario”.   
The issue arose after Mr. Silva was struck and injured by an unidentified motorist and sued for compensation under the Motor Vehicle Accident Claims Fund (“Fund”), which was created and funded by the Province of Ontario.   The Motor Vehicle Accident Claims Act R.S.O. 1990 c M-41 (the “Act”) prohibits payments from the Fund to “a person who ordinarily resides in a jurisdiction outside Ontario…” After the Superintendent refused to pay Silva on the ground that he does not ordinarily reside in Ontario, Silva sued and brought a motion for summary judgment.    The motion court found that Silva does not ordinarily reside on Ontario, and dismissed the motion.  Silva appealed, not on the issue whether he is ordinarily resident, but on whether the Court had properly applied the test under the Act. 
The Court of Appeal, endorsing the motion court’s ruling, stated that de facto presence, even if continuous, does not automatically establish ordinary residency for the purpose of access to the Fund.   The substantial length of that presence did not either.   The Court noted that Silva was plainly aware that his presence in Ontario was unlawful, that he had been deported, returned illegally, and he had never even tried to obtain legal status. He did not pay taxes. The Court said that Silva’s lack of status weighs heavily in the determination as to whether he is ordinarily resident (para. 24). The motion court (2016 ONSC 307) said the lack of status is not itself a bar to a finding of ordinary residence (para. 43); the Court of Appeal did not comment on that point.
Although the ruling does not address the meaning of “ordinarily resident” in the context of jurisdiction, it may nonetheless have a bearing on jurisdiction cases.  Silva’s long and continuous presence in Ontario made him plainly and clearly de facto ordinarily resident in Ontario, and yet he was nonetheless found to be not ordinarily resident.  
One distinguishing factor is that the motion court held the taxpayer-supported Fund is not intended for people who live in Ontario illegally and clandestinely, and interpreted the Act accordingly.  Another factor is that “ordinarily resident” is a basis for jurisdiction because a claim against someone ordinarily resident is a claim with a substantial link to Ontario, and because someone ordinarily residing in Ontario would expect to be subject to the jurisdiction of its courts.   If Silva was sued in Ontario, there would be that substantial link to Ontario, and he could not credibly say he does not expect to be subject to the jurisdiction of the Ontario courts.