Often when a person is involved in an accident, be it as a driver, cyclist, or pedestrian, their primary focus is on minimising the impact to their life and assessing their injuries – a process which can sometimes take weeks or months. Usually, this is fine since the standard statute of limitations for a lawsuit is 2 years from the date of injury. But did you know that if you are injured on a municipal roadway, you need to let the municipality know within 10 days or your ability to claim against them later might be forfeit?
Under s 44(10) of the Municipal Act, anyone seeking to file a claim against the city for insufficient maintenance on a roadway (within the normal 2-year limit) must first notify the city clerk of the incident, in writing, within ten days to preserve the right to file suit later.
Maintenance
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. 2001, c. 25, s. 44 (1).
Liability
(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. 2001, c. 25, s. 44 (2).
Notice
(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, including the date, time and location of the occurrence, 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. 2001, c. 25, s. 44 (10); 2017, c. 10, Sched. 1, s. 4.
But how do I know if my incident was related to maintenance, and what does maintenance even mean?
“Maintenance” within this context is can be as mundane as issues with sidewalk cracks, potholes, clearing ice/snow, or misaligned sewer grates. However, on the other end of the spectrum, it can also be as complex as making a city liable for poorly designed roadways, bike lanes, or insufficient/malfunctioning lights and signage.
For example, if you trip on a curb, or a crack in the sidewalk and need stitches or suffer a broken bone, you would want to inform the city as soon as possible and definitely within 10 days. Alternatively, if you are hit by a car in a bike lane you will also want to put the city on notice because it may be that a lack of proper signage around the bike lane, or the design of the bike lane itself contributed to the collision. All of the above issues are considered “maintenance” issues and fall within the 10-day notice rule.
Full determination of the extent to which any of the above examples may have contributed to an injury takes time, and often expert opinions. However, the 10-day clock starts to run from the date of the incident.
It is important to understand that writing to the City Clerk to advise that you were injured is not the same as suing them. You are simply informing the city of the incident as required by the Municipal Act so that you may preserve your right to sue later within 2 years.
At Lamont Law, we recommend that all persons injured on city-controlled property immediately write to the City Clerk regardless of the extent of injury, or the certainty that property maintenance contributed to the injury.
What constitutes notice?
You can call someone at the City and tell them you need to inform the City Clerk of an injury relating to municipal property and ask how to do that.
You can also send a letter by registered mail or hand-deliver the letter. You should include your name and contact information, the date and time of the incident, the injuries you sustained, the location of the incident and the intention to preserve the right to file suit later.
Writing to the city clerk may result in the city asking you to speak to an adjuster for a liability statement – if this occurs you are under no obligation to provide them with a statement. Call Lamont Law or any personal injury lawyer to fully understand your rights!
