By Muniza Kabir and Sakif Alam
You are in Canada temporarily. A work permit, a study permit, or a visitor stay. A car runs a red light, or a stairway gives way, or a dog attacks in a park, and you are hurt badly enough that your plans are suddenly uncertain. You may not be able to work. Your permit may be tied to a job you can no longer do. You may have to go home before the injury has healed.
Two questions come up immediately. Can you claim compensation if you are not a Canadian citizen or permanent resident? And what happens to the claim if you leave?
Your status does not affect your right to claim
Ontario’s personal injury law does not distinguish between citizens, permanent residents, and temporary residents. Anyone injured by another person’s negligence in Ontario can sue in Ontario’s courts. Anyone injured in a motor vehicle accident in Ontario is entitled to claim accident benefits, regardless of immigration status. A worker injured on the job is covered by workplace insurance whether they hold a work permit or not.
Insurers occasionally suggest otherwise. They may say that benefits are for residents, or that a claim cannot proceed if you return home. Neither is correct as a general statement, although the details differ depending on the type of claim.
Motor vehicle accidents. If you were in a vehicle insured in Ontario, or were a pedestrian or cyclist struck by one, the accident benefits system applies. If you have your own auto insurance from outside Canada, the interaction between the two policies needs to be worked out, but a claim exists. If no insurance is available at all, a provincial fund may respond in some circumstances.
Workplace injuries. Temporary foreign workers, including those in agriculture, caregiving, and construction, are covered by Ontario’s workplace safety and insurance system. Employers who tell workers otherwise, or who discourage claims, are acting unlawfully.
Falls and other injuries. Claims under the Occupiers’ Liability Act and in ordinary negligence are open to anyone.
What happens to your permit
This is where immigration law enters. Most work permits are tied to a specific employer and job. If the injury prevents you from doing that job, the permit does not automatically end, but it does not help you either. You cannot work for anyone else on it, and when it expires, renewal depends on a job you may not be able to perform.
The options depend on your situation:
- Apply for a visitor record to remain in Canada as a visitor while you recover and while the claim proceeds. Medical treatment and an ongoing legal proceeding are both legitimate reasons for a temporary stay, and they should be documented in the application.
- Change employers, if you are able to do different work. This requires a new permit, and we explain the process in our post on changing employers on a closed work permit.
- Restore status, if the permit has already expired. This must be done within 90 days.
- Consider a humanitarian and compassionate application in serious cases where treatment cannot be continued in your home country.
Whatever the route, do not let status lapse while focusing on recovery. Loss of status complicates the injury claim, because it becomes part of the record, and it complicates any future return to Canada.
If you leave Canada
A claim does not end because you leave. You can instruct a lawyer in Ontario from anywhere. Much of the process, including examinations for discovery, mediations, and many tribunal proceedings, can be conducted by video. Settlements can be paid abroad.
There are practical difficulties. Medical treatment received outside Canada must be documented in a form the insurer and the court will accept, which usually means translated records and reports from treating physicians. Insurer examinations may require you to attend in person, which means travel, and the insurer may or may not pay for it. Giving evidence is easier in person than by video, and a trial, if it comes to that, generally requires attendance.
Income loss claims also change. If you return home and work there, your earnings there are relevant. If you cannot work there because of the injury, the evidence of what you would have earned, in Canada and at home, needs to be assembled.
None of this is a reason to abandon a claim. It is a reason to plan the departure with the claim in mind, and to make sure the evidence is in order before you go.
Coming back
If the claim requires your attendance, you will need to be able to enter Canada. A visa or electronic travel authorisation application for the purpose of attending a legal proceeding or a medical examination is ordinary, and a letter from your lawyer explaining the purpose helps. But it takes time, and a refusal at the wrong moment can derail a hearing date. The immigration side of the claim should be managed alongside the legal side.
Two files, one plan
An injured temporary resident has an immigration problem and a compensation problem at the same time, and the decisions in each affect the other. Because we practise in both areas, we can coordinate them.
For more on the types of injury claims we handle, see our motor vehicle accidents, slip and fall, and dog attack pages, and for permits, our work permits page. If you have been injured while in Canada temporarily, book a consultation with Kabir & Alam Lawyers.