Everything you always wanted to know about pothole laws
SHUTTERSTOCK PHOTO Copyright: SantaGig
Q: What is the liability of my town concerning potholes and damage to my car?
A. There is no universal standard for road care. Towns set their own schedule on how often their roads are inspected and repaired.
The legislation associated with potholes is refreshingly simple. Its interpretation over the years provides nuances that are not evident to the layman. The results are surprising, as we shall see below.
Section 604.1 of the Cities and Towns Act (applicable to your case since the Town population exceeds 5000 people, provincial legislation is similar for other areas) states:
The municipality is not liable for damage caused ....by the state of the roadway or bikeway to the tires or suspension system of a vehicle.
Pretty clear right? An effective deterrent to claiming when read quickly. But there’s more to it than that for pothole law junkies out there.
Here it is: If you can demonstrate that your Town has been grossly negligent, that section does not apply. Why?
The courts say s.1474 of the Civil Code overrides this pothole law:
A person may not exclude or limit his liability for material injury caused to another through an intentional or gross fault; a gross fault is a fault that shows gross recklessness, gross carelessness or gross negligence.
Gross fault? When you have fallen so far below the ordinary standard of care that one can expect, it warrants the label of being "gross." That is behaviour that made your parents very angry, negligence bordering on the intentional.
Here is one example of gross negligence. If you prove your Town had been made aware of the pothole and had not responded diligently to make repairs or install warning signs, the courts assimilate this behaviour to gross fault. In that case the Town is liable for tire and suspension repair.
Isn’t that uplifting? Here is another surprise.
Damage to steering, wheel rims, alignment, hubcaps, and other parts can be claimed for compensation. Yes that’s right, the law must be interpreted literally and it does not mention these parts. Also, for those car parts you don’t have to prove gross negligence. Why? Because a gross negligence exception is unneeded if there is no legislation on such car parts.
So where do you go to read about your rights for those car parts? You look in the Civil Code and apply the general sections on damages caused by someone’s negligence (s.1457). The link between a Town’s fault and the damages to your car must be proven but the bar is lower; no need to prove gross negligence. You simply show your Town did not take reasonable measures to prevent the damages from occurring, which is easier.
It is crucial to file your claim with the Town in writing within 15 days of the clunk incident. If it has to go to Small Claims Court you have six months to file a claim there. No fancy legal loopholes here.
In your letter state clearly you are making a monetary claim explaining why you believe the Town has been negligent. Include photos - pothole width and depth, precise location, damage to your car. Submit an access to information request to find out how often the road was inspected and maintained. Phone them to let them know about this pothole but first ask if they knew about it. Now you see the pertinence of this question.
An alternative is trying to claim from your insurer but coverage varies and, if covered, it’s considered a collision which affects your record.
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