Pothole perils: Who is liable for bad roads during our spring?

Robert Durante —

Springtime is here. Cold temperatures, snow and ice will thankfully subside, but in their wake they will reveal the dreaded pothole.

Drivers know when they’ve hit a pothole. The thumping sensation and jarring noise is unmistakeable. And while hitting a pothole can damage tires, wheels, and suspension the damage can be much more severe, including injury and in some cases death. From potholes to ice and snow, and overall bad road conditions, the question is: who is liable for bad roads in Ontario?

Ontario’s provincial Ministry of Transportation (“MTO”) and local municipalities have a duty to keep the roads under their jurisdiction in a reasonable state of repair and have a legal duty to take reasonable steps to keep their roads free of hazardous conditions.

The question is: what constitutes reasonable?

A regulation to the Municipal Act (Minimum Maintenance Standards Regulation), designed to restrict claims against municipalities, deems a pothole to be in repair if it is less than 8 cm deep and 1000 square centimetres in surface area on a city street that carries over 10,000 vehicles a day. This regulation puts road users at risk.

Nevertheless, as recently as December 2012, the Supreme Court of Canada ruled against the City of Oshawa in the long-running and high-profile saga of Port Perry sisters, Erica and Shannon Deering, who suffered catastrophic spinal cord injuries and were left permanently wheelchair-dependent after a car accident in 2004.

The Deering accident was a bad road design case, not a road maintenance case, but it shows that the highest court in the country has confirmed that municipalities have a positive duty to make country roads safe for reasonable drivers.

The legal duty of MTO and municipalities does not mean that roads must always be kept in a perfect condition. That would be impossible. However, employees responsible for maintaining roadways have timelines that they must meet in order to avoid legal liability. The timelines demand that the busiest roads with the highest posted speed limits be treated with priority.

If the MTO or a municipality fails to maintain a road within the expected timeline and someone is injured in a crash caused by bad road conditions, the courts sometimes hold the MTO or the municipality liable. If you have been involved in an accident or your car has been extensively damaged it might be worth your while looking into the responsibilities of the local municipality.

Robert Durante, is a senior partner with Oatley Vigmond – Ontario’s largest personal injury law firm.