Canada: No Liability For Potholes

Last Updated: April 2 2014
Article by Jonathan Chen

Most Read Contributor in Canada, September 2016

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.

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