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Home » Community Action » Ontario's Worst Roads » Who is Responsible?

Details to know

• Imagine this scenario
• Who pays for the damage - and who is responsible?
• What is an extraordinary circumstance?
• Should you make an insurance claim?

Imagine this scenario

As you're driving along, you feel and hear a heavy thud. In an instant, you are struggling to maintain control of your car. You manage to bring the car to an abrupt stop on the soft shoulder of the road. With the immediate crisis over, you perform a quick self-analysis and luckily have no injuries.

When traffic is clear, you open the car door to survey the damage to your vehicle. To your surprise, there are no obvious signs of damage. But, as you look more closely, you see that your front left wheel is slightly bent. You make a call to CAA Roadside Service and are reassured that help is on the way.

As you wait for the tow truck, you walk along the shoulder of the road back to where you heard and felt that thud. Instead of finding a rock or unfortunate animal, you see a simple pothole, no bigger than a football or a large dinner plate. But, it is located in the exact spot where your tire would have hit it. As you investigate the pothole, you see that although at first it looks small, it is long enough and wide enough for your tire to fall into.

A pothole this size can cause serious damage to a vehicle. As you look at the road conditions, you see several other potholes and the road itself looks to be in a serious state of disrepair.

You think to yourself this could have been avoided, and the roads should not be in such a poor state. You wonder who is responsible.

This is not an uncommon scenario. Yet, the many questions that arise from such situations are not easily answered. In situations like this one, where there were no serious injuries, the most immediate outcome is the damage to the vehicle itself.

Who pays for the damage - and who is responsible?

The motorist in the above scenario may think the road authority should be responsible - since they maintain the roads. As such, they ought to pay for the damage to the vehicle.

However, the motorist may find it very difficult to build a convincing argument for the road authority to pay for the damage. This is due to a number of reasons - chief among them is the Highway Traffic Act, which states that:

• Motorists must maintain control of the vehicle they are driving.
• Motorist must be able to operate the vehicle with a keen awareness of the surroundings.
• Motorists must always keep a safe distance from other vehicles.
• Motorists must maintain a speed that allows them to react to events around them or to circumstances that arise.
• Vehicles on the road should have brakes, tires, lighting and other mechanical systems maintained to a standard that allows the vehicle to safely react to a normal driving environment.

For example, in a residential area, a motorist should expect to see pedestrians and should therefore be prepared to react to the actions of pedestrians within reason.

Similarly, in the scenario described above, it can be argued the motorist should have been driving with a level of awareness to avoid the pothole, or with the ability to recognize the pothole and slow to a speed that would have allowed the vehicle to safely traverse the pothole.

If the motorist in our example is unsatisfied with this explanation, the alternative is to try and prove the circumstances of this particular accident are extraordinary. In a province, such as Ontario, with extreme temperatures and heavy volume roads, it is unreasonable to think that roads can always be maintained to such a high standard that potholes never appear.

What is an extraordinary circumstance?

Municipalities are responsible for most of the roads in Ontario. Most municipal activities are governed by the Municipal Act, which can be found at
www.e-laws.gov.on.ca. The City of Toronto has its own act, The City of Toronto Act.

Regulation 239/02 of the Municipal Act and Regulation provides a set of detailed standards for such things as:

• Routine road inspections
• Snow removal
• Sanding and salting
• Road sign and signal maintenance
• Repair of potholes

The regulation, as it relates to potholes, actually provides a specific guideline of exactly how fast a pothole must be repaired - based on the size of a particular pothole and the classification of the road itself.

It further to define exactly what is considered to be a repair. For example, the minimum standard on a class 2 highway is that a pothole with a surface area greater 800 cm2 and a depth greater than 8cm must be repaired within 4 days of its discovery.

In effect, a municipality can generally only be responsible when it fails to meet the prescribed standard for regular inspections, speed of repair and quality of repair.

It is also worthwhile to note that even if the standards have not been met, the failure to meet those standards would not automatically make the municipality entirely responsible for accidents that occur on roads. The actions of the driver must also be considered.

In our scenario, it is also very important for the aggrieved motorist to know that municipalities are protected by very strict time limits for making claims against them. In Ontario, for legal action relating to road repair, a municipality must be put on notice within 10 days of the occurrence, and any action must be brought against them within 2 years of the event.

Should you make an insurance claim?

Alternatively, the motorist in our example may decide that if the municipality cannot be held directly responsible, then perhaps an insurance claim should be submitted. However, making such a claim is not always the best option.

In Ontario, insurers provide policies that are based on the standard wording written by the Ontario government. The policy is known as the OAP 1 and can be found at www.fsco.gov.on.ca.

A quick glance at the policy reveals that the loss described above would be covered under section 7 of that policy entitled "Loss or Damage Coverages (Optional)" and more specifically under the "Collision" section that specifically contemplates collision with "the surface of the ground."

This is a problem for many motorists.

• First, collision coverage is optional and not all motorists purchase it.
• Second, a deductible is almost always associated with collision coverage... the deductible is the portion of the loss that the policyholder agrees to pay. In many cases a $500 deductible might be more than the value of the damage to the vehicle.
• Third, a collision loss may affect the future insurability of that motorist or may have an affect on their premiums.

These challenges help to outline the circumstances under which making an insurance claim is the best option. If the damage to the vehicle is significant, or if there are any injuries, then making an insurance claim is your best option. That is, provided you have purchased the optional collision coverage and that the damages are in excess of your deductible. Your insurer will respond to help get your vehicle back on the road or pay you for it, if it is not repairable.

In the case of injuries, it doesn't matter if you do not have collision coverage, your automobile insurance policy will respond to help with your physical recovery. And, if your insurer is responding with coverage for your claim and believes the municipality is responsible for the accident by reason of not maintaining the roads, they will fight on your behalf against the municipality to deal with that original question: Who is responsible?