If your vehicle has sustained damage after a collision with a pothole, there are compensation options available, but you’ll first have to prove that the accident wasn’t your fault!

Carelessness, negligence, or misconduct

Provincial and municipal governments cannot be held liable for material damage to automobile tires or suspension systems due to road conditions.

Despite that legal restriction, it is still possible to sue the Quebec Ministry of Transport, a municipality or a city for carelessness or negligence or misconduct by the authority in question. The burden of proof, however, rests with the motorist (that means you).

Burden of proof

To prove carelessness, negligence, or misconduct on the part of the authority responsible for road maintenance where the pothole damage took place, you must prove two things:

1. That the pothole had already been reported to the authorities before the incident; and

2. That the latter had failed to do anything about it. 

Evidence

Certain evidence can help you prove your allegations:

  • Testimony by witnesses (other motorists, residents, or a nearby merchant) that a pothole was present;
  • A prior report to authorities;
  • Lack of a sign warning of the danger;
  • Photos of the pothole and surroundings;
  • The measurements of the pothole (width and depth);
  • An estimate of repairs to the vehicle from a recognized garage, like a CAA-Quebec Approved Auto Repair Services outlet.

Municipalities and the various Ministry of Transport divisions have official complaint mechanisms. You can therefore ask the relevant authority for a copy of the list of potholes reported for the period in question.

The repair estimate: a crucial part of the evidence

An estimate from a recognized repair shop, such as an Approved Auto Repair Services outlet, is very important. The legal exemption from liability (i.e., not being obligated to repair the damage) applies only to damage to tires and suspension systems.

This means that even if you are unable to show, to the judge’s satisfaction, that tire or suspension damage was due to the relevant authority’s carelessness, negligence, or misconduct in maintaining the road, you could still be compensated for damage to a wheel rim, a wheel, steering components, etc. This is how the law has been applied to date.

Deadlines for making a claim

Instead of suing the provincial government or the municipality for damages, you can also choose to submit a claim to authority concerned.

In either case, you’ll need to act quickly, as the deadlines are extremely short:

  • In the case of a claim against a municipality or city, written notice announcing your intent to claim damages must be sent by registered mail to the municipal or city clerk in the area where the pothole is located, within 15 days of the incident.
  • In the case of the Ministry of Transport, claims fall under the Civil Code, and the period of limitation is three years. If you wait too long, though, it could be difficult to prove the poor state of the road, so it is recommended that you act as soon as possible.

Taking your case to court

In addition to making a claim with the municipality or city, you can also demand financial compensation (i.e., sue for damages) within six months of the date of the incident.

If the damages claimed are $15,000 or less, you must take your case to Small Claims Court. If the repair estimate is higher than $15,000, your case will be decided by the higher courts.

Seeking advice from your insurer

Another option is to consult your insurance company to see if it would be more advantageous to submit an insurance claim, depending on the deductible specified in your policy.

If, after you have opened a claim file and assessed the costs, you choose not to submit a claim to your insurer after all, there will still be a record of this in your claims history in the central claims registry, the Fichier central des sinistres (it will be flagged “Fermé sans indemnisation”; i.e., “File closed without compensation”).

Legal texts

Roads managed and maintained by the Ministry of Transport of Quebec: Article 30, An Act Respecting Roads, CQLR c V-9

Municipality governed by the Municipal Code: Article 1127.2, Municipal Code of Québec, CQLR c C-27.1

Municipality governed by the Cities and Towns Act: Article 604.1 of the Cities and Towns Act, CQLR c C-19

Examples of cases previously heard

Beaulieu c. Ville de Montréal  (500-32-091070-054)


Plante c. Ville de Montréal (500-32-093719-054)


Harvey c. Ville de Montréal (500-32-091116-055)

Saillant c. Ville de Québec (200-32-041469-064)


St-Denis c. Ville de Sainte-Agathe-des-Monts (715-32-000163-069)


Lavallée c. Ville de Montréal (500-32-092285-057)


Gagnon c. Ville de Dolbeau-Mistassini (175-32-000074-065)

Caissy-Nantel c. Ville de Bonaventure (105-32-001376-086)


Rivest c. Municipalité de Sainte-Julienne (705-32-008488-055)

Dulude c. Ministère des Transports du Québec (500-32-060144-013)

Tellier c. Ville de Gatineau (550-32-009901-023)


Bréard c. Ville de Montréal (500-32-084489-048)

Fortin c. Ville de Saguenay (165-32-002043-044)

Heppel c. Ville de Saguenay (150-32-005006-040)


Goulet c. Ville de Chicoutimi (150-32-003623-010)


Ville de Montréal c. De Michele (500-17-027148-058) - Cour supérieure

Gravel c. Ville de Saguenay (150-32-007103-092)


Perron St-Laurent c. Municipalité de Berry (605-32-002416-104)


Ferme Meniel inc. c. ville de vaudreuil - Dorion (760-32-012585-081)

Alary c. Ville de Saint-Jérôme (700-32-020388-086)

 

To consult these decisions, visit citoyens.soquij.qc.ca Opens external link in new window

 

To find a decision of interest to you:    

  • Find the drop-down menu "Tribunal ou organisme"
  • Select "Cour du Québec - Division des petites créances (CQ)" from the drop-down menu    
  • Enter "nid-de-poule" or "pothole" in the Mots clés field