Ontario Regulation 239/02: Municipal Liability in Accident Claims

See how Ontario's minimum maintenance standards define municipal liability in motor vehicle accident claims When a pothole swallows a car’s front wheel, or when a cracked sidewalk sends someone sprawling, the first instinct might be to blame the city. That instinct is understandable, but in Ontario, proving a municipality dropped the ball is harder than it looks. Ontario Regulation 239/02, better known as the minimum maintenance standards, sets the legal floor for what municipalities must do to keep roads and sidewalks in working order. And sometimes, that floor is lower than one would expect. Ontario’s minimum maintenance standards are a set of legally binding benchmarks introduced under the Municipal Act’s Ontario Regulation 239/02. They tell municipalities exactly what they must do and how fast to maintain their roads, bridges, and sidewalks. The regulation was the provincial government’s answer to a growing problem. Accidents on municipal roads and highways had become the single largest source of claims against municipalities in Ontario. Municipal governments pushed for relief from open-ended liability, and the minimum maintenance standards were the result. The standards cover a wide range of conditions, including: One exception to note of: these standards do not apply to Class 6 highways, which are the lowest-traffic roads with an average daily traffic count of zero to 49 vehicles. As such, those roads are entirely outside the framework. Every obligation under Ontario Regulation 239/02 or the minimum maintenance standards depends on the class of the highway. Class is determined by two things: There are six classes in total, with Class 1 being the busiest urban roads and Class 5 covering roads with 50 to 499 vehicles per day. Class determines how tight the response windows are. For example: For surface discontinuities on roadways, the deemed repair threshold that is applicable across all classes is five (5) centimetres. If the height is at or below five (5) centimetres, the roadway is legally considered to be in a state of repair, regardless of how it felt to the person who encountered it. Here’s a video explaining the municipalities’ obligations based on these minimum maintenance standards: Check out our article on “ Personal injuries proceedings act: Limits, notices, and traps ” to learn about the factors that lawyers and litigants should not miss in these cases. The municipality that has jurisdiction over the highway is the one that is responsible for its maintenance. Under s. 44(1) of the Municipal Act , a municipality must keep every highway and bridge it controls in a state of repair that is reasonable in the circumstances, taking into account the character and location of the road. If it fails, it is liable for damages under the Negligence Act . That duty covers everything within the road allowance, including roads, curbs, boulevards, and sidewalks. However, that duty does not make municipalities insurers, and the standard under the law is reasonableness, not perfection. Most of the minimum maintenance standards are triggered the moment the municipality becomes aware of the problem. Under the Ontario Regulation 239/02, a municipality is deemed to be aware of a fact if, in the absence of actual knowledge, circumstances are such that it ought reasonably to have known. This means that wilful blindness does not protect municipalities. If a scheduled patrol should have spotted the defect, the clock starts running from when that patrol should have occurred. This is why patrol records and inspection logs carry so much weight in litigation. If the municipality missed a required patrol, it cannot credibly claim it had no knowledge of a defect that a reasonable patrol would have found. Head over to Canadian Lawyer’s Events page for more in-person lawyer conferences and activities to get insights from legal professionals across the country on various topics. The court