Jarley Silva still bears the scars – including 23 screws in his shattered leg – from a hit-and-run accident suffered on a Toronto street five years ago.

But he also bears much fresher wounds – the pain of being denied compensation from a public victims fund and the shame of being booted out of the country.

As an undocumented migrant from Brazil, Silva lost a court appeal for compensation from the Motor Vehicle Accident Claims Fund because he was illegal in Canada at the time of the hit-and-run.

Under provincial law, the government doesn’t give payouts from its Motor Vehicle Accident Claims Fund to no-fault accident victims who “ordinarily” reside outside of Ontario.

However, Silva had lived in the province for almost nine years when he was hit by a car on Bloor St. W. and Lansdowne Ave. early one morning in April 2011, raising questions over the definition and interpretation of ordinary residence in the law.

“The issue is whether the person can show they are an ordinary resident of Ontario,” said personal injuries lawyer Rebecca Nelson, who represents Silva. “If you are here illegally, what the court decision underscores is you can’t access the publicly funded benefits as a matter of policy.”

Silva first came to Canada in 1994, using false documents, and worked in Ontario as a cleaner until 1995, when he was arrested by immigration officials and deported to Brazil. He was banned from returning to Canada, according to court documents.

However, he came back to Toronto illegally in 2002 via the United States and lived here underground until his accident nine years later when he suffered a broken leg and came on the radar of the authorities. He decided to make an asylum claim, which was denied in 2013. His deportation ensued.

“I was thrown over the car at high speed and lost consciousness. Someone called 911 and the ambulance sent me to a hospital emergency,” recalled Silva, now 42, who had worked in construction in Toronto for years before he was sent back to Brazil in June 2013. He required 23 screws in his leg to help him heal, he told the Star in a phone interview.

The Motor Vehicle Accident Claims Fund is the “payer of last resort” for people injured in car accidents when no automobile insurance exists to respond to the claim. Victims are eligible for compensation even in an accident with an uninsured or unidentified driver or a stolen vehicle.

In 2014, the latest statistics available, the fund paid out $17 million in accident benefit claims.

At the time of the accident, Silva did not own a car or have other insurance for the injuries he suffered, though he did have an Ontario driver’s licence. He tried to sue the unidentified driver and the province for $200,000 in compensation from the accident claims fund.

Despite his lengthy residency in Ontario, a motion judge agreed with the government that the applicant was not “ordinarily” a resident in Canada, which precluded him from being compensated.

“Toronto was my home. It was my only place of residence. It’s just not fair,” said Silva, who is unable to return to construction work as a result of his injuries and now is supported by his retired mother in Mato Grosso, in western Brazil.

“I wonder what would happen if it was the other way round and I was the driver who hit someone and what they would do to me.”

In appealing the court decision, Silva and his lawyer argued that the province should have been required to prove he was ordinarily resident in Brazil or a country other than Canada.

However, the Ontario Court of Appeal disagreed, ruling the definition of “ordinary” residency in the province was set out to avoid unnecessary payments out of the fund, which relies on public money.

“Payments to those persons are permitted only where the claimant resides in a jurisdiction that provides ordinary residents of Ontario with reciprocal benefits, that is, ‘with recourse of a substantially similar character to that provided (in Ontario,)” the three-member appeal panel wrote in its decision.

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“The appellant was present in Ontario illegally, was subject to deportation on discovery and had already been deported once. His continuing and knowing unlawful presence in Ontario . . . was the result of deception, and he never sought to regularize his illegal status until after he was made subject to a deportation order.”

In dismissing the claim, the appeal court also ordered Silva to pay $5,000 in legal fees to the government.

Correction - October 27, 2016: This article was edited from a previous version that said Jarley Silva was 18 when he first came to Canada.

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