A municipality has a statutory duty to maintain highways. A highway includes the entire municipal road allowance, which in most cases will include municipal sidewalks and bike paths. Section 44 of the Municipal Act outlines the duty of care owed by a municipality:
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.
In Johnson v. Milton (City) 2008, the Ontario Court of Appeal defined a condition of non-repair of a roadway to include "any aspect of the road and its environs. This includes not only the surface of the road but also the alignment of the road, obstacles on the side of the road and signage."
Therefore, the elements necessary for a plaintiff to be successful in an action for damages in connection with a bicycle accident on a municipal highway include:
- A state of disrepair of the highway; and
- Evidence that the non-repair was the cause of the accident.
Even if these elements are met, a municipality can escape liability by demonstrating that it did not know and could not reasonably have been expected to have known about the state of repair of the highway, or it took reasonable steps or reasonable care to prevent the default from arising.
Case law indicates that municipalities fail to satisfy their duty of reasonable care when they fail to warn users of the hazardous condition of the road of which they had knowledge or should have had knowledge. The non-existence of warning signs or adequate signage often plays a significant factor in the finding of liability against municipalities.
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