This is the time of year for potholes on highways and municipal roads in Ontario. If you have been to Toronto recently, driving the downtown streets, you may end up, as I did, hitting a good-sized pothole and having to pull over to see if the tire was going flat. Under the Municipal Act, each municipality has a statutory duty to keep a road in a reasonable state of repair and, if it does not, it may be sued by the owner of a car damaged while using the road. The statutory duty imposed on the municipality and the statutory right to sue the municipality, if your car needs repair work as a result of hitting a pothole, goes back in Ontario to 1850 when the first legislation was introduced. By 1874, one Mr. Toms et ux. (a common Latin abbreviation back then meaning “the wife”) sued the then Township of Whitby. The judge in the case had this quaint statement of the law:
“If the road dedicated were, by reason of a precipice or excavation, or from any other cause, so dangerous that it could not be safely used as a highway, I see nothing to shew that by English law the “parish” or any one whatever was bound, if the public accepted and used the road, to fence or gravel it for the public benefit, against these natural and existing dangers. But if any one were to excavate upon it or near to it, or were to leave any obstruction upon it, or to do anything whatever to it, so as to make travel upon it unsafe, it would be a nuisance; and for any damage resulting, he would be liable.”
The test to meet today is a reasonable state of repair in light of all the circumstances, including the character and location of the road. Thus, a back road in our county (which is a municipality) may be maintained differently than a well-travelled county road and may, as a result, not give rise to a successful claim by the car owner. In addition, a municipality is not liable for failing to keep a road in a reasonable state of repair if it did not know, or could not expect to know, about the need to repair a road. Thus, if a car is damaged as a result of a spring wash out of part of a road due to an overflowing culvert, a claim by the owner is not likely to succeed. You must give notice of your claim and of the damages complained of to the clerk of the municipality within ten days of the incident.