Justice Leach has conducted a thorough review of the standard of care for a municipality as it relates to potholes in the decision of McLeod v. General Motors of Canada, 2014 ONSC 134 (S.C.J.). In McLeod, the action against a rural municipality was dismissed.
Ms. McLeod was injured on September 18, 2004 on a rural gravel road in Dutton-Dunwich. She lived on the road and had been coming home from a nearby social gathering on the night of the accident. The plaintiff alleged she was surprised by the headlights of an oncoming vehicle, and lost control of her vehicle due to potholes on the road. The plaintiff called lay witnesses who felt the potholes never improved and were always present. A number of witnesses alleged they complained to the municipality and wanted the road to be paved.
Justice Leach held that the road was not in a state of disrepair. Gravel roads are inherently dynamic. The presence of loose stone near the edges of the road would not be unusual, dangerous or unreasonable in the circumstances. There were eight potholes with diameters of 6"-12", none of which was deeper than 2". The condition of the road was reasonable in the circumstances, having regard to the rural nature of the township, the number of similar roads within the municipality's jurisdiction, the municipality's limited resources, the road's low traffic volume, and the obvious nature of the road's surface, alignment and elevations.
Even if he had held the road was in a state of disrepair, Justice Leach would have held the municipality was entitled to rely on the statutory defences set out in s. 44(3) of the Municipal Act. Firstly, the municipality had no knowledge of a defect. Although complaints were allegedly made, they were informal (such as in coffee shops) and vague or general. Secondly, the municipality took reasonable steps to prevent the default from arising as it had a regular system of grading. Thirdly, the municipality met the Minimum Maintenance Standards for inspection and pothole repair.
Although it is a lengthy decision, McLeod is a worthwhile read for those defending municipal claims.