Potholes are a costly nuisance and danger for drivers, cyclists and pedestrians.

For example, there could be bent rims, or damage to the alignment, axle or suspension of a motor vehicle. With respect to individuals, they can sustain personal injuries or die from a bicycle fall or a slip and fall from losing one’s balance after coming into contact with a pothole.

Making a Pothole Claim

If you find your vehicle or bicycle damaged, or yourself injured, as a result of being in contact with a pothole, you have 10 days from the date the injury occurred to submit a notice letter to seek damages. According to the Municipal Act, 2001 (Ontario), the notice of claim needs to be sent by registered mail to:

“(a) the clerk of the municipality; or

(b) if the claim is against two or more municipalities jointly responsible for the repair of the highway or bridge, the clerk of each of the municipalities.”

You should check the website of the municipality in which you will be submitting the notice of claim to for further information. For example, the City of Toronto webpage on Pothole Claims sets out that your notice of the claim can be sent to the City Clerk by mail, fax or email. It also provides a list of particulars for you to include in your notice of claim.

Submitting a Pothole Claim After the Time Limit

The Municipal Act, 2001 does set out exceptions to the 10-day time limit to give notice, such as where the injured person dies as a result of the injury. Another example is where “a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the municipality is not prejudiced in its defence.”

Likelihood of Success

Whether a municipality will compensate you depends on a number of factors. They include whether the municipality satisfies the regulation respecting minimum maintenance standards for highways imposed on that municipality.

Where a person sustains injuries from coming into contact with a pothole, the location of where the injury occurred will be examined. For example, in the Ontario Superior Court of Justice case of Walker v.City of Stratford, an individual stepped into a pothole and lost his balance when he was walking from the curb to his parked car. He twisted his knee from the fall and had surgery to repair the torn meniscus. Bryant J. stated:

“Mr. Walker was required to walk on the roadway to reach his parked vehicle. Mr. Walker took the shortest and safest route to get into his parked vehicle. Unlike the plaintiff in Holmes v. Kingston (City), Mr. Walker was not a jay-walker who was attempting to reach the opposite side of the street. I find that the municipal parking stalls were created by the municipality to allow vehicles to be parked. It is reasonable to infer that drivers and occupants would walk on the highway to reach the curb. Thus, the area of the parking stalls where the accident occurred must be suitable for both vehicular and pedestrian traffic, similar to a crosswalk. Accordingly, the municipality was required to maintain the highway where the slip and fall occurred to be fit for pedestrian traffic.”

Despite this case, the extent of the statutory duty of care (Negligence Act) is to be gauged by the requirements of the particular locality. What constitutes neglect from one place to another will depend on, among other things, the character and population of the area as well as the volume of vehicular traffic.

If you need assistance with a claim arising out of a road being in disrepair, including commencing a lawsuit after your claim has been rejected by the municipality, contact Douglas Strelshik at 647.348.5422. He has over 30 years of experience in dealing with property damage and personal injury claims.