Vancouver wins pothole negligence case by arguing it didn't know about the pothole in the first place
Driver failed to prove negligence, tribunal rules; city policy on potholes is to react when complaint is filed
Vancouver can't fix what it doesn't know is broken.
That was the argument the city successfully used to avoid paying a driver thousands of dollars worth of pothole damage inflicted on his vehicle, after a B.C. Civil Resolution Tribunal dismissed his expenses claim.
Ray Janne Calinisan said it was dark and raining as he drove through roadworks in Vancouver on Oct. 11, 2020, according to the tribunal documents. Calinisan claims he drove over large potholes in the road and the sharp edges "immediately punctured both driver's side tires."
In his claim, Calinisan said the City of Vancouver should be responsible for $4,999 in damage to his vehicle, which included the loss of use of the car, inspection expenses, towing expenses and insurance expenses.
But the tribunal found that Calinisan ultimately failed to prove the city was negligent.
No complaint, no negligence
In Vancouver, the city's policy when it comes to fixing road defects is to wait until a complaint is filed.
"Vancouver says it has made a policy decision to address roadway defects on a reactive basis when these are reported, as opposed to carrying out formal periodic inspections of roadways," wrote tribunal member Richard McAndrew.
Along this principle, if the city were never notified of a pothole or a defect on its road, it would never be held responsible for failing to address the issue.
The city stated it never received a complaint about the potholes that damaged Calinisan's vehicle before the incident.
A lawyer for the City of Vancouver argued "it cannot be held liable for acting according to its policy decision."
McAndrew agreed and dismissed the Calinisan's claim of negligence. In civil proceedings, the applicant must prove their claim, the tribunal emphasized.
"Mr. Calinisan must show that Vancouver owed him a duty of care, Vancouver breached the standard of care, Mr. Calinisan sustained the claimed damage, and the damage was caused by Vancouver's breach," McAndrew wrote.
Similar arguments have been upheld previously in B.C. courts, perhaps to the surprise of pothole victims.
McAndrew pointed to two separate cases when making his decision.
In a 2018 B.C. Civil Resolution Tribunal claim, a driver lost his claim against the Township of Langley because a member found the applicant had not proved that the pothole had been reported to the municipality.
And in 1980, the Supreme Court of Canada found that the District of North Vancouver was not negligent for failing to maintain a pothole which caused a cyclist to suffer injuries.
The latter case was slightly different as the district's policy was to inspect all roads every fortnight. When the district had inspected the road the week before the accident, there was no pothole.
"The method of exercising its power to maintain the road was a matter of policy to be determined by the municipality itself and the municipality could not be held to be negligent because it formulated one policy of operation rather than another," according to the documents.
Ultimately, it all comes down to the municipality's policy on potholes — and, based on the precedent, it would appear that the financially safest option in B.C. is to avoid potholes altogether.