Casual Legal: Pothole season is upon us!
DISCLAIMER: This article is meant to provide information to Alberta Municipalities members only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated. This content is not intended for the general public.
By Sabrina Kuckertz
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider
Pothole season is (unfortunately) once again wreaking havoc and causing costly damage to Albertans' motor vehicles. As a reminder, pursuant to s. 532(1) of the Municipal Government Act (MGA), municipalities are responsible for ensuring that every road or other public place that is subject to the municipality’s direction, control and management is kept in a reasonable state of repair.
If a municipality fails to perform its duty and knew or should have known of the state of repair, the municipality is liable for damages caused (see s. 532(2) and (6) of the MGA).
Assessing what constitutes a “reasonable state of repair” is case-specific and depends on all surrounding circumstances. However, as noted by the Court in the decision of Marsten v Grande Prairie (City), 2022 ABPC 236, generally speaking, a municipality's duty of care is to ensure that the ordinary driver, acting reasonably, can travel safely on its roads. Municipalities are not required to guarantee that all users of its roadways will not sustain vehicle damage due to disrepair of the road surface (see Marsten at para 42).
The key takeaway here is that if a municipality is aware of potholes on its roads and does not take reasonable steps to address them in a timely manner, the municipality could be held liable for any damages resulting from the disrepair.
If you have any questions about potholes or municipalities’ responsibilities regarding road maintenance, please contact our team for more information.
To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or casuallegal [at] abmunis.ca (email) to reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or riskcontrol [at] abmunis.ca (email) to connect with Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.
