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We are shocked and devastated by the senseless crime motivated by hatred and racism that was committed in our community on June 6. We extend our deepest condolences to the friends and family of those who were killed, and wish a full recovery to the surviving young boy who remains in hospital. We stand in solidarity with our Muslim partners, colleagues, clients, friends, and neighbours in rejecting Islamophobia in all forms, and demanding better for our community. Hatred has no place here. It diminishes every one of us. Each of us shares the responsibility for putting an end to it. We recognize that as members of the legal profession, our share of that responsibility is heightened. This unspeakable crime strikes at the very core of the Muslim community’s sense of security and will have a lasting impact. Although this tragedy can never be undone, we believe the goodness in our city will prevail. We commit to be better for each other, to demand better from each other and to share love, kindness and tolerance with one another. We must stand together to build a safer, more inclusive community for all.

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In this article Rasha El-Tawil examines the liability of a municipality under section 44 of the Municipal Act, 2001 in the case of accidents that occur on a poorly or unmaintained road in extreme winter conditions, as well as the steps you should take if you are involved in an accident you feel was caused by poorly maintained roads.

Each year in Ontario, along with the cold winter weather comes snow, ice, sleet, freezing rain and more. All of these combine to create potentially dangerous road conditions.

When bad weather hits, the municipality has a positive statutory duty to maintain its highways and sidewalks in a reasonable state of repair.  Section 44 of the Municipal Act, 20011 states:

44. (1) The municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge.

If the City fails to perform its duty to maintain its roads, it is liable in damages to anyone who suffers as a result of the breach.2

There are standards that a municipality must adhere to in maintaining its roads and highways. These standards come from case law as well as legislation. The Minimum Maintenance Standards for Municipal Highways 3 set out the minimum requirements for when a municipality has to treat icy roadways, plough snow covered roads and sidewalks, or fill pot holes. However, this is only the minimum that a municipality must do, and not all they ought to do to ensure safe roadways and sidewalks.

While the municipality must meet these minimum requirements, s. 44 of the Municipal Act provides some defence and clarifies that the municipality4 is not liable in cases where it could not have reasonably known the state of repair or it took reasonable steps to prevent the default from occurring5.

It is important to remember that if you are injured in an accident which you believe was caused by lack of maintenance of a roadway or sidewalk, you must provide written notice to the municipality within 10 days of the incident. If you do not provide such notice, you may be precluded from pursuing an action against the municipality.  Section 44(10) of the Municipal Act, 2001 states:

(10) No action shall be brought for the recovery of damages under subsection (2) unless, within 10 days after the occurrence of the injury, written notice of the claim and of the injury complained of has been served upon or sent by registered mail to,

(a) the clerk of the municipality; or
(b) if the claim is against two or more municipalities jointly responsible for the repair of the highway or bridge, the clerk of each of the municipalities.

If you were not able to provide notice within 10 days, you should nonetheless do so as soon as possible, as you may be excused if a judge finds that you have a reasonable excuse for the lack of notice and that the municipality is not prejudiced by the lack of notice.6

If you or a loved one has been injured in a motor vehicle collision as a result of slippery or dangerous road conditions, please contact Siskinds lawyer Rasha El-Tawil at [email protected] or 519-660-7712 for a free consultation about your legal rights.

1Municipal Act, 2001, SO 2001, CHAPTER 25, [The Act].

2Municipal Act, 2001, s 44(2) Liability: 44(2) A municipality that defaults in complying with subsection (1) is, subject to the Negligence Act, liable for all damages any person sustains because of the default.

3 O Reg 239/02

4 If you are a municipality and have any questions about your obligations and rights under the Municipal Act, please contact Paula Lombardi at [email protected] or 519-660-2828.

5 Municipal Act, 2001, s 44(3)

6 Municipal Act, 2001, s 44(11)

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