Cyclist Pothole Claims

"We can't just think of these potholes as how they would affect a huge tire on a car, we [have] got to think about how they would affect someone on a bicycle who's not surrounded by two tons of steel as well." – Dave Shellnutt on CBC

As snow and ice melt, asphalt exposed to months of freezing and thawing emerges. Spring brings potholes and road imperfections. These hazards may not only damage motor vehicles, but in our experience, they can also cause cyclists to crash and injure themselves.

Municipalities in Ontario often do their best to perform seasonal sweeps to patch up and repair potholes and other hazards. However, they do this too often with a car tire in mind. We have asked municipal employees under oath how they go about this work. They drive along city streets in pickup trucks and see what looks out of the ordinary or potentially hazardous. We suspect from a motorist’s perspective.

Potholes and road disrepair should also be assessed by their potential impact on a person riding a bicycle.

To help hard working municipal staff, we encourage cyclists who safely navigate around a wild pothole to pay it forward and contact municipal authorities, asking them to fix the issue. In our experience, you’re likely saving someone else from injury. They often listen too:

Tweet at them or Google Search to “report a pothole or road disrepair” in your municipality (or see below).

Citizen advocacy is critical, because municipal liability is not in the cyclists favour if you are injured after crashing into a pothole.

The Municipal Act prescribes the size and age a pothole must be before the city can be held liable for the damage it causes to a motor vehicle (or bicycle/cyclist). This explains why many claims made for damage caused by potholes are unsuccessful.

Potholes are governed by Ontario Regulation 239/02: Minimum Maintenance Standards For Municipal Highways. Under this regulation the size of the pothole is determined by a combination of its surface area and depth. Section 6. (1) provides that only potholes exceeding both the surface area and the depth set out in an accompanying Table need to be repaired. A pothole is deemed to be acceptable (in a state of repair) if its surface area or depth is less than or equal to that set out in the Table:

The size of what amounts to an unacceptably large pothole depends on the character of the street it inhabits, based on its speed limit and average daily traffic. The higher the speed limit and/or traffic volume, the smaller the acceptable pothole size and the faster it needs to be repaired. Conversely, the lower the speed limit and traffic volume, the larger the acceptable pothole size and the longer it can take to repair it.

Low volume residential streets would fall into Class 5.

Even if a pothole is too big or deep, the municipality still has a certain time within which it has to be repaired. But there is a further catch: the time limit for repairing a particular pothole only starts to run once the city has been put on notice of its existence. If nobody reports a pothole, the time limit for getting it fixed never starts to run (assuming they are following a reasonable road inspection plan).

In the event you are injured by a pothole, whether you think the a municipality could be liable or not you should take the following steps immediately:

Seek medical attention
Take pictures and measure the pothole using rulers, tape measures, etc. to get the exact height, width, and depth
Seek legal advice from a cycling law expert: info@thebikinglawyer.ca
Put the municipality on notice within 10 days of the crash

All of these steps are critical, but if you fail to put the municipality on notice within 10 days you may lose your right to claim for damages sustained as a result of hitting the pothole. Section 44(10) of the Municipal Act provides for the 10 day notice period.

To put the city on notice you must either by email, fax or mail put the clerk of the municipality on notice. There is no standard format for a notice letter, but it should include:

your identity;
the date, time and location of the incident;
how the incident occurred; and,
your injuries.

Even if you are unsure if you have a claim, provide the municipality with notice as soon as possible.

This will preserve your rights in the event your injury turns out to be serious or permanent, and begins to affect your ability to work or perform your activities of daily living.

STAY INFORMED

To find your municipalities appropriate contact google City or Town clerk and get their contact information.

Helpful reporting info for municipalities across Ontario:

Ride safe and ride often.

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