Filing a Claim for Pothole Damage Against a Municipality

Filing a Claim for Pothole Damage Against a Municipality

Written By: Jonathan Farine and Sonam Sapra, Student-at-Law

Potholes are becoming increasingly present on our roadways and are often unavoidable. The damage that they cause can be costly, especially if serious personal injuries result. In these cases, you should consider bringing a lawsuit for damages caused by potholes or similar road deficiencies.

Who is Responsible for Repairing Potholes?

In Ontario, Section 44(1) of the Municipal Act requires municipalities to maintain roads in a state of repair. Therefore, when damage is caused by a pothole that is not in a reasonable state of repair, a claim can be made against the municipality in which the pothole is located. It is important to note that some roads, like the 400-Series highways, are maintained by the Province of Ontario. For these roads, the Municipal Act does not apply.

Do I Need to Provide Notice?

Before filing a claim against the municipality, you do need to provide notice. Section 44(10) of the Municipal Act requires notice of the occurrence to be provided to the defendant municipality within 10 days. Notice should be provided to either the clerk of the municipality or in the case of a claim against two or more municipalities, then to the clerk of each municipality. To ensure that sufficient notice is provided, it is also important to check whether your specific municipality has any additional requirements.

Failure to provide notice is not necessarily fatal to your claim. If you fail to provide notice within 10 days, then Section 44(12) of the Municipal Act states that a judge must determine whether you had a reasonable excuse. The most common reasonable excuse is that your injuries prevented you from providing notice in the 10-day period.

What Determines the Success of My Claim?

Whether a claim will be successful is often contingent upon whether the minimum maintenance standards for municipal highways (MMS) have been met. The MMS imposes a time limit in which potholes should be repaired. This time limit varies depending on various factors, such as pothole size, speed limit, and traffic volume of the roadway. For example, the MMS states that a pothole located on a class 1 highway that has a surface area of 600 cm2 and a depth of 8 cm must be repaired within four days. If the city has not met the MMS, then negligence will likely be established.

How Can McLeish Orlando Help?

Ultimately, successfully bringing a claim is a time-consuming and complicated process. However, the lawyers at McLeish Orlando can help navigate this process and are here to advocate for you. Contact our office for a free consultation with one of our lawyers to discuss your claim.

Jonathan Farine

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