Benefits cannot be claimed from MVAC by non-resident: FSCO

A person involved in a motor vehicle accident in Ontario who is not a resident of Ontario cannot claim statutory accident benefits from the Motor Vehicle Accident Claims Fund (MVAC), a decision by the Financial Services Commission of Ontario (FSCO) confirmed.
Oksana Schevchuk was injured in a motor vehicle accident on Oct. 20, 2004 in Ontario. At the time of the accident, Schevchuk was a national of Kazakhstan and lacked legal status in Canada, according to FSCO.
“Indeed it is clear from the evidence that Ms. Schevchuk was the target of efforts by the Canadian government to have her removed from Canada, efforts which eventually succeeded,” the decision reads.
The legality of her presence in Canada did not alone determine the outcome of her claim, the decision notes. Ordinary residence, not legal residence, is the test applied.
Although Schevchuk had established a presence in Canada, she was still a resident of Kazakhstan, the decision notes. “It was not all clear that her presence in Canada was sufficient to be characterized as ‘ordinarily resident.'”
The fact that she would have remained in Canada had she not been expelled made no difference to the outcome, the decision notes, because intent alone does not determine ordinary residency.
Additionally, on Oct. 6, 2003 she had been refused refugee status.
“The jurisprudence has been fairly consistent that where a person is unlawfully in Canada he or she cannot be said to be ordinarily resident,” the decision notes. “In this case, Ms. Schevchuk should not be able to claim ordinary residence based on her own, apparently wrongful refusal to leave when her refugee claim was denied.”
The decision noted that if the applicant had ever met the criteria for being an ordinary resident, her residency status would have been terminated by the process to expel her from the country.