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Repair of Roads: Municipal Maintenance Duties
Question: Is a city legally responsible if a pothole or other poorly maintained road hazard damages my car in Ontario?
Answer: In Ontario, a municipality may be liable for vehicle damage from potholes or other road hazards if it failed to keep the road in a reasonable state of repair under Municipal Act, 2001, S.O. 2001, c. 25, s. 44, subject to statutory defences such as lack of notice and meeting minimum maintenance standards. Wennekers.Legal™ provides Legal Services for Niagara Falls, helping you assess notice and documentation, limitation deadlines, and whether the road condition and the municipality’s response support a viable claim.
Is the City Legally Responsible If a Poorly Maintained Road Causes Damage to a Car?
When a Road Is Poorly Maintained Resulting In Damage or Injuries, the Local Municipality May Be Liable. The Municipality to Take Reasonable Steps When Maintaining Roads. When Suing a Municipality, Special Notice Periods May Apply.
Understanding Municipal Roadway Maintenance Duties Including the Road Surface, Sidewalks, Signs, Trees, and more.
Road hazards, such as potholes, pose significant risk of causing injury to persons or causing damage to vehicles. Although the majority of road hazard incidents involve minor consequences, some incidents do involve serious damage to vehicles and may also involve severe injuries. Beyond potholes, road maintenance issues may also involve signs per The Queen v. Jennings et al., [1966] S.C.R. 532; guardrails, trees per Swinamer v. Nova Scotia (Attorney General), [1994] 1 S.C.R. 445, among other things.
The Law
The legal duty imposed upon the municipality to maintain the roadway is enshrined within section 44 of the Municipal Act, 2001, S.O. 2001, Chapter 25 where it is stated:
Maintenance
44 (1) The municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge.
Liability
(2) A municipality that defaults in complying with subsection (1) is, subject to the Negligence Act, liable for all damages any person sustains because of the default.
Defence
(3) Despite subsection (2), a municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if,
(a) it did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge;
(b) it took reasonable steps to prevent the default from arising; or
(c) at the time the cause of action arose, minimum standards established under subsection (4) applied to the highway or bridge and to the alleged default and those standards have been met.
Regulations
(4) The Minister of Transportation may make regulations establishing minimum standards of repair for highways and bridges or any class of them.
General or Specific
(5) The minimum standards may be general or specific in their application.
Duties of Repair
The statutory duties imposed upon a municipality were reviewed and summarized by the Court of Appeal in the Chiocchio v. Hamilton (City), 2018 ONCA 762, case wherein it was stated:
[8] Section 44 of the Municipal Act, S.O. 2001, c. 25, requires a municipality to keep highways under its jurisdiction “in a state of repair that is reasonable in the circumstances, including the character and location of the highway”.
[9] In Fordham v. Dutton-Dunwich (Municipality), 2014 ONCA 891 (CanLII), 70 M.V.R. 6, at paras. 28-29, Laskin J.A. described the ordinary reasonable driver standard, the standard of care which governs a municipality’s duty of highway repair. As described by Laskin J.A., a municipality is required to prevent or remedy conditions on its roads that create an unreasonable risk of harm for ordinary drivers exercising reasonable care. Ordinary reasonable drivers are not perfect; they make mistakes. However, a municipality's duty does not extend to remedying conditions that pose a risk of harm only because of negligent driving.
Extent of Duty to Repair
As shown in Chiocchio, the duty imposed upon the municipality is to act with reasonableness rather than to act perfectly and that maintenance of the roadway needs to performed to the extent of preventing or correcting conditions that may expose an ordinary driver, who is presumed as capable of making driving errors, to unreasonable risk; however, the duty as legally imposed upon a municipality without a requirement to prevent or correct conditions that may cause risk to a negligent driver. This viewpoint that a municipality is obligated to maintain the roads to a standard of reasonableness for use by an ordinary driver, rather than negligent driver was also recently articulated in Smith v. Safranyos, 2018 ONCA 760 whereas it was said:
[31] “Non-repair” will be established if the plaintiff proves “on a balance of probabilities that the municipality failed to keep the road in question in a reasonable state of repair”: Fordham, at para. 26. The applicable legal test is, “was the road at the material time sufficiently in repair that those users of the road, exercising ordinary or reasonable care, could use it in safety”: Deering v. Scugog (Township), 2010 ONSC 5502 (CanLII), at para. 100, affirmed 2012 ONCA 386 (CanLII), leave to appeal from C.A. refused [2012] S.C.C.A. No. 351. In adopting the Deering standard of care test, Laskin J.A. elaborated in Fordham, at para. 28, that “ordinary reasonable drivers are not perfect drivers; they make mistakes”, but he cautioned, at para. 29, “a municipality’s duty of reasonable repair does not extend to making its roads safer for negligent drivers.”
Further to the possibility that a municipality may be found liable for an incident involving automobiles due to a failure to properly maintain a roadway, a municipality may also be found liable for incidents that involve a pedestrian; Bellefleur v. London (City), (2002) 33 M.P.L.R. (3d) 252, a bicyclist; Danco v. Thunder Bay (City), (2002) 21 M.P.L.R. (3d) 18, or even a person upon roller blades; Winter v. London (City of), 2002 CanLII 15580. Essentially, a municipality owes a duty to all persons, automobile drivers or others, who may be users of the roadway.
Concerns to Consider
The statutorily imposed municipal duties regarding roadway repairs are extensive and often involve legal definitions and interpretations that vary from common vernacular; and accordingly, careful review of the statutory definitions as well as the common law cases embodying judicial interpretations is crucially important when considering litigation against a municipality.
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Conclusion
The statutory law, being the Municipal Act, 2001, quite clearly imposes a duty upon municipalities to reasonably maintain roadways. The common law cases subsequently articulate the standard of measure for the reasonableness required as being sufficient to make the roads safe for the diligent driver rather than the negligent driver.
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