Winter Road Maintenance – Pothole Peril

Well, it’s been almost two months since our beloved Wiarton Willy predicted an early end to winter. Regardless of the weather, it is now officially spring. Unofficially however, we are entering the much-dreaded season of roadwork.

2017’s mercurial weather fluctuations have turned cracks into craters and made driving a delicate and dangerous swerving game of tire preservation. Anyone who’s been commuting along the QEW in particular will be relieved to see fresh tar filling up the pesky potholes that have been adding a much-dreaded kathunk to our commutes. Potholes do a number on your car’s tires, wheels and suspension but they can also be dangerous to human life.

Auditor General’s View On Highway Maintenance

In 2015 the Auditor General put out a less than flattering report on winter highway maintenance in Ontario. In response, the Minister of Transportation assured Canadians that they were “taking swift action on the Auditor’s recommendations, with several to be in place by the start of next winter.” In a follow up report in 2016, the Auditor General confirmed that the Ministry had made “significant progress” on recommendations, but that it will take the Ministry until 2026 to fully implement all of the Auditor General’s recommendations.

In the meantime, we can only hope that Canadian Tire will start offering bulk suspension realignments at a discount.

Winter Road Maintenance - Auditor General View on Canadian Roads

Who is Liable for Rough Road Conditions?

Section 44 of the Municipal Act requires that municipalities keep their roadways “in a state of repair that is reasonable in the circumstances, including the character and location of the highway.” But what is a reasonable state of repair and what does the Act mean by a road’s character?

A pothole, for example, is technically considered in repair if it is less than 8 cm deep and 1000 square centimetres in surface area on a street that carries over 10,000 vehicles per day. So consider trying to safely avoid such sinkholes because if they damage your vehicle, chances are it won’t be the municipality paying your repair bill.

Municipalities set priorities for road repair according to the speed and traffic volume of the road or highway. This is the character of a road to which the Municipal Act is referring. Accordingly, a main, downtown artery like Brant St. in Burlington, or a major highway like the 403, will get priority over rural regional roads and quiet suburban cul-de-sacs.

Since the wording of the Act is intended to restrict liability claims against municipalities, what Section 44 means – for all intents and purposes – is that you better have insurance.

Car Damage From Poor Road Conditions – What to Do

If you or your car is damaged from poor road conditions, you will, regrettably, have a hard time getting compensation from the municipality in which the accident occurred. If your car is damaged from poor road maintenance, one option is, of course, to check with your insurance and see if the deductible is worth pursuing a claim.

Alternatively, you have the option to make a claim against the municipality responsible for the road’s maintenance. In order to successfully do so, you must prove that the municipality knew or should have known about the pothole and didn’t fix it within a reasonable period of time (which varies based on the street’s character). Unfortunately, municipalities aren’t known for footing the bill of pothole-damaged vehicles. A 2011 city ombudsman report found that the city denies over 95% of claims related to potholes.

Claims for Vehicle Damage - Winter Road Maintenance Claim

Claims for Vehicle Damage

Having an experienced lawyer on your side will be essential if you wish to launch a successful lawsuit for damages caused to you or your vehicle from inadequately-maintained roads. Making a claim is time-sensitive (it must be submitted within 10 days of the accident) and complicated. Expert testimony and legal council can guide you through the morass of municipal litigation and KCY at LAW can help. Call us at (905) 639-0999 or contact us online now to book your consultation.

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