Legal Ease, June 9

Welcome to pothole season. You are driving your ATV or automobile as slowly and carefully as you can but… BANG! It sounds like you ran over a land mine.

But you didn’t.

You hit a pothole.

The weather in Nunavut pretty well guarantees we are going to have problems with the roads. There will be potholes. Aside from trying to avoid potholes while driving, there’s not much you can do about potholes.

The damage that can result from hitting a pothole, especially at speed, can be significant. A single impact can destroy a tire and damage a rim.

Tires can burst or get a leak which will eventually lead to a blow out. Tire rims are often made out of aluminum which tends to bend easier than steel. The damage can be thousands of dollars, in a bad case.

Obviously driving fast is a bad idea. And sometimes damage from potholes is really the driver’s fault for just ignoring the road conditions. You have to be careful on a bad road.

That said, it is possible to make a claim against the community maintaining the bad road in certain, very limited, circumstances.

For a damage claim to be considered you have to show the road was not up to minimum maintenance standards.

Those minimum maintenance levels differ by type of road; most of the roads in Nunavut are fairly basic but that does not mean giant pot holes are areas where the road has collapsed are acceptable.

A road that is used a lot and is a center of the community should be maintained with greater care than a seldom used road leading out to the land.

That said, a public road must be passable and there is a duty to make sure the roads are actually roads and can be used for ordinary traffic.

Beyond fulfilling minimum standards, any claim will require that the municipality knew or ought to have known of the problem and failed to take reasonable steps to fix the problem.

If part of a road washes away unexpectedly one night, it’s not reasonable to hold a hamlet responsible the next day. But if the washed out road is not dealt with even though everyone knows about it, then there may be liability.

One mayor in Nunavut has recently tweeted about the poor state of roads in that mayor’s community—clearly that community has knowledge of the problem.

Obviously it is difficult to make a claim for pothole damage. But it’s not impossible where the community does not address the issue promptly and properly.

James Morton is a lawyer practicing in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.