Canada: No Liability For Potholes

McLeod v. General Motors of Canada Limited et al., 2014 ONSC 134

The Ontario Superior Court of Justice recently dismissed an action against the Municipality of Dutton/Dunwich (the "Municipality") for failing to maintain a gravel roadway in a claim arising from a motor vehicle accident. The trial dealt solely with liability as damages had previously been agreed upon at $950,000.

On September 18, 2004, the 18-year-old plaintiff was driving home on an unpaved roadway with a dirt and gravel surface, when she was surprised by an oncoming vehicle. To allow both vehicles to pass safely, she had to steer her vehicle to the edge of the roadway, and when she steered back to the centre, she encountered potholes which caused her to lose control of her vehicle. She sustained serious injuries and commenced an action against the Municipality.

The Court held that the roadway where the plaintiff's accident took place was in a reasonable state of repair in the circumstances.

The plaintiff's argument primarily focused on the existence of potholes in the roadway. The Court found that there were approximately eight potholes in the location where the plaintiff lost control of her vehicle. However, they all measured less than two inches in depth, and their diameter ranged from about six inches to no more than twelve inches. They did not constitute a hazard to the ordinary driver exercising ordinary care.

The plaintiff also argued that the presence of loose gravel on the edge of the roadway caused her accident. The Court stated that, while the presence of loose gravel made the edge of the roadway "less sturdy" than the middle of the roadway, this sort of condition would be typical of gravel roads. It was not surprising that the centre of the roadway had more "hard-packed dirt and gravel" than the roadway's edge, which would be less travelled and therefore less compressed over time. The Court accepted that the loose gravel played a role in causing the accident because it would have made it far more difficult for the plaintiff to brake or steer her vehicle back toward the centre of the roadway after moving to allow the oncoming vehicle to pass. However, the Court found that ordinary drivers would reasonably anticipate this condition.

In arriving at the conclusion that the roadway was in a reasonable state of repair, the Court also considered circumstances such as the dynamic nature of gravel roads, the number of similar roads in the Municipality, the low traffic volume, the Municipality's limited resources, and the predominantly rural and sparsely populated location.

Although it was unnecessary to do so, the Court went on to address the applicability of the three statutory defences available to municipalities under section 44(3) of the Municipal Act, 2001. Specifically, the Municipal Act, 2001 provides that a municipality will not be liable if (a) it did not know and could not reasonably have been expected to know about the state of repair of the roadway; (b) it took reasonable steps to prevent the default from arising; or (c) the applicable minimum standards were met.

The Court found that the Municipality was aware of complaints of the roadway's general state of repair, but it had no knowledge of any specific defect alleged to have caused the accident. Although there was testimony about prior accidents on the roadway and evidence of complaints to the Municipality, the evidence was either irrelevant or far too general to warrant any kind of reasonable inference that the Municipality's attention had been drawn specifically to the loose gravel or the potholes alleged to have caused the plaintiff's accident.

The Court also held that the Municipality took reasonable steps to prevent the alleged defects in the location where the accident occurred. Specifically, the roadway was graded at least once a month from February to November of 2004, including three weeks before the accident. In addition, the Municipality patrolled the roadway on a weekly basis for deficiencies and conducted annual road "tours" to assist in identifying priorities and allocating resources to various road maintenance projects.

The Municipality also complied with the relevant Minimum Maintenance Standards. It met the standards for patrolling the roadway, and as none of the potholes exceeded the depth and width set out in the Minimum Maintenance Standards, they were "deemed to be repaired."

The Court commented on the Municipality's lack of written records. The Municipality failed to maintain written policies about the frequency of patrols or grading, failed to keep written schedules for maintenance operations and failed to keep detailed logs of patrols, grading, application of gravel or complaints. In this regard, the Court noted that the Municipality prepared documentation with a view to ensuring adequate road maintenance, not to facilitate litigation. That said, the Municipality's representatives were able to provide detailed and credible evidence about the Municipality's regular maintenance activities.

In conclusion, the Court found that the primary cause of the accident was the plaintiff's own negligence. She was driving too fast, not paying attention, and did not appropriately allow for the possibility of passing vehicles.

Finally, the Court found that the plaintiff was not wearing a seatbelt and would have apportioned 25% for contributory negligence on this basis had there been a finding of liability.

This case provides a useful review of a municipality's obligations under the Municipal Act and the defences available to municipalities. It also highlights the importance of considering factors such as traffic volume, roadway configuration, surface materials and municipal budgets in determining whether a roadway is in a reasonable state of repair. In addition, this case provides a reminder that in maintaining the roadway, municipalities must account for ordinary drivers who are not perfect and occasionally make mistakes, but are not required to maintain roadways in such a condition that reckless drivers can travel safely.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Rogers Partners LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Rogers Partners LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions