Minimum maintenance standards: how low can they go?

When a pothole swallows a car’s front wheel, or when a cracked sidewalk sends someone sprawling, the first instinct might be to blame the city. That instinct is understandable, but in Ontario, proving a municipality dropped the ball is harder than it looks.

Ontario Regulation 239/02, better known as the minimum maintenance standards, sets the legal floor for what municipalities must do to keep roads and sidewalks in working order. And sometimes, that floor is lower than one would expect.

What is Ontario’s minimum maintenance standards?

Ontario’s minimum maintenance standards are a set of legally binding benchmarks introduced under the Municipal Act’s Ontario Regulation 239/02. They tell municipalities exactly what they must do and how fast to maintain their roads, bridges, and sidewalks.

The regulation was the provincial government’s answer to a growing problem. Accidents on municipal roads and highways had become the single largest source of claims against municipalities in Ontario. Municipal governments pushed for relief from open-ended liability, and the minimum maintenance standards were the result.

The standards cover a wide range of conditions, including:

• potholes on paved and non-paved surfaces
• surface discontinuities at joints or cracks on roadways and sidewalks
• shoulder drop-offs
• debris on roadways
• ice formation and snow accumulation
• streetlights, signs, and traffic signal systems
• encroachments adjacent to sidewalks, which were added in the 2018 amendments under Ontario Regulation 366/18

One exception to note of: these standards do not apply to Class 6 highways, which are the lowest-traffic roads with an average daily traffic count of zero to 49 vehicles. As such, those roads are entirely outside the framework.

How road class drives under the standards

Every obligation under Ontario Regulation 239/02 or the minimum maintenance standards depends on the class of the highway. Class is determined by two things:

• the speed limit on the road, and
• the road’s average daily traffic volume

There are six classes in total, with Class 1 being the busiest urban roads and Class 5 covering roads with 50 to 499 vehicles per day.

Why the class matters in these standards

Class determines how tight the response windows are. For example:

• on a Class 1 highway: a pothole on a paved surface exceeding 600 square centimetres in area and eight centimetres in depth must be repaired within four (4) days of the municipality becoming aware
• on a Class 5 road: the threshold is larger at 1,000 square centimetres and eight centimetres deep, and the repair window stretches to 30 days, per s. 6 of the Ontario Regulation 239/02

For surface discontinuities on roadways, the deemed repair threshold that is applicable across all classes is five (5) centimetres. If the height is at or below five (5) centimetres, the roadway is legally considered to be in a state of repair, regardless of how it felt to the person who encountered it.

Here’s a video explaining the municipalities’ obligations based on these minimum maintenance standards:

Check out our article on “Personal injuries proceedings act: Limits, notices, and traps” to learn about the factors that lawyers and litigants should not miss in these cases.

Who is responsible for maintaining Ontario’s roads?

The municipality that has jurisdiction over the highway is the one that is responsible for its maintenance. Under s. 44(1) of the Municipal Act, a municipality must keep every highway and bridge it controls in a state of repair that is reasonable in the circumstances, taking into account the character and location of the road. If it fails, it is liable for damages under the Negligence Act.

That duty covers everything within the road allowance, including roads, curbs, boulevards, and sidewalks. However, that duty does not make municipalities insurers, and the standard under the law is reasonableness, not perfection.

When the clock starts ticking for these minimum standards

Most of the minimum maintenance standards are triggered the moment the municipality becomes aware of the problem. Under the Ontario Regulation 239/02, a municipality is deemed to be aware of a fact if, in the absence of actual knowledge, circumstances are such that it ought reasonably to have known.

This means that wilful blindness does not protect municipalities. If a scheduled patrol should have spotted the defect, the clock starts running from when that patrol should have occurred.

This is why patrol records and inspection logs carry so much weight in litigation. If the municipality missed a required patrol, it cannot credibly claim it had no knowledge of a defect that a reasonable patrol would have found.

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How is municipal minimum maintenance standards compliance measured?

The court set out the governing test on compliance under these standards in Fordham v. Dutton-Dunwich (Municipality), 2014 ONCA 891. Courts apply a four-part analysis to any claim against a municipality for road non-repair:

• For the plaintiff:
• non-repair: the plaintiff must prove on a balance of probabilities that the road or sidewalk was not in a reasonable state of repair
• causation: the plaintiff must prove that the non-repair caused the accident
• For the municipality:
• defences: if the plaintiff establishes those two elements above, the burden shifts to the municipality to prove at least one of three defences under s. 44(3) of the Municipal Act
• contributory negligence: if no defence applies, the municipality is liable, but it may still reduce damages by showing the plaintiff’s own conduct contributed to the injury

The minimum maintenance standards defence sits in the Municipal Act’s s. 44(3)(c). It provides that if the municipality is not liable if the minimum standards applied to the highway and to the alleged defect, even if the road was genuinely in a state of disrepair.

What compliance with the standards looks like

In David Beardwood et al. v The City of Hamilton, 2022 ONSC 4030, the court found that the intersection was not in a reasonable state of repair. A surface discontinuity at an irregularly angled intersection had caused a motorcyclist to lose control, fracture his tibia, and require two surgeries.

While the causation element was established, the action was still dismissed. Here, the court found that the surface discontinuity averaged approximately 4.5 centimetres, which is within the five-centimetre threshold in the minimum maintenance standards. The City of Hamilton had met the standard, and that was enough to defeat the claim under s. 44(3)(c) of the Municipal Act.

Similarly, in Cromarty v. Waterloo (City), 2022 ONSC 1322, the court dismissed a slip-and-fall claim on a municipal sidewalk at the first step of the Fordham test, as it found that the plaintiff had not proven the sidewalk was in a state of non-repair.

Here, the City of Waterloo conducted annual sidewalk inspections and had received no complaints about the location. Its expert measured the sidewalk differential at between 17.5 and 18.5 millimetres, which the court found to represent a reasonable standard of repair in the context of a sidewalk with moderate pedestrian traffic. In other words, it is well within the two-centimetre threshold under the minimum maintenance standards.

Can a municipality still be liable if the minimum maintenance standards are met?

Yes, a municipality still be liable if the minimum maintenance standards are met, and this is where plaintiffs’ counsel find traction.

Compliance with the minimum maintenance standards is not always the end of the analysis. Courts have signalled that meeting the regulatory floor may not be enough where irregular weather conditions are involved. An example would be if a winter storm or freezing rain produces hazards beyond what the standards contemplate, a municipality may still need to show its response was reasonable under general negligence principles.

How the standards apply in extreme weather conditions

The regulation itself addresses extreme weather directly. Under ss. 4.1 and 5.1 of the Ontario Regulation 239/02, if a municipality properly declares a significant weather event, all affected roadways are deemed to be in a state of repair for the duration of the event, provided the municipality monitors weather and deploys resources when practicable.

A “significant weather event” is defined as an approaching or occurring weather hazard with the potential to pose a significant danger to highway users. The declaration must go through official channels, such as the municipality’s website, social media, or a press release.

What plaintiffs’ counsel should watch for

Even where the minimum maintenance standards apply, a municipality’s compliance record is fair game. Key pressure points include:

• patrol gaps: if the municipality missed a required patrol, it may be deemed to have had constructive knowledge of the defect (e.g., on a Class 3 highway, patrols are required once every seven days; on a Class 5, once every 30 days)
• measurement disputes: expert engineering evidence is often the difference, such as in Beardwood, where the outcome turned on whether the surface discontinuity averaged 4.5 or 5.5 centimetres
• prior complaints: if a municipality received a complaint about a specific location and did not remedy it within the required timeframe, the s. 44(3)(a) defence, i.e., that it did not and could not reasonably have known, becomes unavailable
• inspection quality: an annual sidewalk inspection conducted by a summer student may technically satisfy the minimum maintenance standards frequency requirement, but whether it constitutes an adequate inspection is a question courts have left unresolved

Minimum maintenance standards: looking at the road ahead

The minimum maintenance standards tell how low the legal floor is, but they do not seal every crack in a plaintiff’s case. Road class classification, patrol records, expert measurements, weather conditions, and the quality of inspection systems all remain live issues in every municipal liability claim. But how low can the minimum go? Well, low enough to defeat claims that, on their face, look strong.

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