A common question is: Can an undocumented or illegal immigrant sue for a car accident in Canada? Car accidents can be traumatic, especially for people who are unsure about their legal rights due to their immigration status.
The short answer is yes, but with some important limitations.
This blog explains the legal position in Canada, key challenges, and a real court case that clarifies how the law works.
Legal Rights After a Car Accident in Canada
In Canada, the legal system generally allows anyone, regardless of immigration status, to seek compensation after a car accident.
This means that:
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An undocumented immigrant who is injured in a car accident can file a personal injury claim
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They can sue the at-fault driver
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They can make a claim with the other driver’s insurance company
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They can go to court to seek compensation for injuries or property damage
Your immigration status usually does not affect your basic right to access the courts.
Equal Protection Under Canadian Law
Canadian courts have consistently held that people living in Canada even without legal status are entitled to basic legal protections.
The Supreme Court of Canada has stated that individuals who are in Canada illegally still have fundamental rights, including:
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The right to legal fairness
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The right to bring a lawsuit
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The right to seek damages for personal injury
In simple terms, being undocumented does not take away your right to sue after a car accident.
Potential Challenges for Undocumented and Illegal Immigrant
While undocumented immigrants can sue, certain factors may make their case more complicated:
1. Driving Without a Licence or Insurance
If the injured person was driving without a valid licence or insurance, this may:
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Reduce the compensation they can receive
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Affect fault assessments
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Limit access to certain insurance benefits
2. Loss of Income Claims
If the injured person cannot legally work due to immigration restrictions, it may be difficult to:
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Prove lost income
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Claim future earning capacity
3. Limited Access to Public Benefits
Some government-funded compensation programs may not be available to undocumented immigrants.
Case Study: Ontario Court of Appeal Decision
A key case helps explain these limits more clearly.
Background of the Case
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Mr. Jarley Silva, a Brazilian citizen, entered Canada in 1992 using a fake visa
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He lived in Canada illegally for many years
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He owned a business, held a driver’s licence, but:
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Had no car insurance
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Did not pay taxes
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Did not have an OHIP card, SIN, or credit card
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In 2011, Mr. Silva was hit by a car while crossing the street in Toronto.
The driver fled the scene and was never identified.
He suffered serious injuries, including fractures to his knee and ankle, requiring surgery and long recovery.
Claim to the Motor Vehicle Accident Claims Fund (MVACF)
Because the driver could not be identified, Mr. Silva applied for compensation through Ontario’s Motor Vehicle Accident Claims Fund (MVACF)—a fund meant to help victims when the at-fault driver is uninsured or unknown.
However, the government argued that the MVACF was only for people who “ordinarily reside in Ontario.”
Court’s Decision
The Ontario Superior Court and later the Ontario Court of Appeal ruled against Mr. Silva.
The court stated that:
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Living in Ontario illegally and in hiding does not qualify as “ordinary residence”
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The law was not meant to allow someone to gain the benefits of residency through long-term illegal presence
Justice Diamond noted that the legislation was not intended to allow someone to “enjoy the benefits of typical residency in Ontario by living a clandestine life over time.”
Mr. Silva’s appeal was dismissed, and he was ordered to pay legal costs.
What This Case Means
The decision does not mean undocumented immigrants cannot sue.
It means:
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Undocumented immigrants can file lawsuits and personal injury claims
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But access to certain public compensation programs (like MVACF) may be restricted
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Residency requirements matter when public funds are involved
