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Suing for Road Maintenance Negligence: Understanding Your Rights in Ontario


Photo of a construction sign
Photo by Tyler Nix

Drivers, pedestrians, cyclists, and rollerbladers are all at risk when roads are not properly maintained. A good example of this would be potholes, which can be the cause of numerous serious injuries. You have the right to sue for injuries caused by poorly maintained roads, but you must be aware of the special rules and deadlines that apply to these types of lawsuits.


Who To Sue If You Are Injured by Road Defects Such as Potholes


Our team of personal injury lawyers at Littlejohn Barristers in Barrie regularly handle personal injury lawsuits arising from road maintenance negligence. These lawsuits are typically brought against the municipality that has jurisdiction over the poorly maintained road or bridge in question.


Section 44 of Ontario’s Municipal Act, 2001, S.O. 2001, c. 25 puts a legal duty on municipalities to keep their roads and bridges in a state of repair that is reasonable in the circumstances. That includes removing snow, black ice, or debris and repairing potholes.


There are specific maintenance standards that must be met by the municipality, as set out in the Minimum Maintenance Standards for Municipal Highways, O. Reg. 239/02. For example, the minimum maintenance standard with respect to the time to repair a pothole varies depending on the size of the pothole, the class of the highway, and whether the road is paved or not. A municipality that fails to meet its legal duty is liable for all damages any person sustains because of the default.


The situation is different if you were injured due to maintenance deficiencies on a major highway such as Highway 400 or Highway 401. The Municipal Act, 2001 does not apply because maintenance of major highways such as the 400-series highways is the responsibility of the Province of Ontario. Instead, the Public Transportation and Highway Improvement Act, R.S.O. 1990, c. P.50 applies and you have the right to bring a lawsuit against His Majesty the King in right of the Province of Ontario, represented by the Minister of Transportation.


How Long You Have to Provide Notice of Your Injury


There are strict deadlines that apply to personal injury claims against the government, whether the claim is against a municipality or the provincial government. You must give notice before filing your claim.

  • If you were injured due to poorly maintained municipal roadways:

    • You must provide written notice to the clerk of the municipality within 10 days of the injury occurring, as required by ss. 44(10) of the Municipal Act, 2001. The notice must be served upon the clerk or sent by registered mail.

    • The notice must include particulars of the injury complained of, including the date, time, and location of the occurrence.

    • In the case of a claim against two or more municipalities, notice must be served upon the clerk of each municipality.

    • Each municipality may have additional guidelines or notice requirements, so you must check with the respective municipality or municipalities.

    • If the notice deadline is missed, it will bar your lawsuit, unless 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.

    • Failure to give notice is not a bar to the action in the case of death as a result of the injury.

  • If you were injured due to poorly maintained provincial roadways:

    • You must give notice in writing of your claim and of the injury complained of, including the date, time, and location of the happening of the injury in accordance with section 33(4) of the Public Transportation and Highway Improvement Act.

    • Notice must be served upon or sent by registered letter to the Minister of Transportation within 10 days after the happening of the injury.

    • The failure to give notice or the insufficiency of the notice is not a bar to your lawsuit if a judge finds that there is reasonable excuse for the want or insufficiency of the notice and that the Crown is not thereby prejudiced in its defence.

In addition to the 10-day deadline that applies to providing notice of your intent to file a personal injury claim, there is also a deadline (called a limitation period) that applies to the actual the filing of your claim. The general rule is that a two-year limitation period applies to commencing a personal injury claim. In the majority of cases, that means you have two years from the date of the injury or the date on which your claim was discoverable to start court proceedings against a negligent municipality or the provincial government. There are some exceptions to the basic two-year limitation period, for example, if the injured person is under the age of 18. Your best bet is to consult with an experienced personal injury lawyer as soon as possible to make sure your right to make a claim is protected.


Our Barrie Car Accident Lawyers Are Here to Help


There’s no time to waste when suing a municipality or the provincial government. If potholes or other poor road conditions are to blame for your injuries, don’t lose precious time. The car accident lawyers at Littlejohn Barristers have the specialized expertise you need to meet the required deadlines and build your case. Every lawyer at our firm knows the ins and outs of accident injury law and can hold their own against government authorities.


We serve injured clients in Barrie, Alliston, Collingwood, Bradford, and the surrounding communities. Contact us today to arrange your free consultation.

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