33 (1) The King’s Highway shall be maintained and kept in repair by the Ministry and any municipality in which any part of the King’s Highway is situate is relieved from any liability therefor, but this does not apply to any sidewalk or municipal undertaking or work constructed or in course of construction by a municipality or which a municipality may lawfully do or construct upon the highway, and the municipality is liable for want of repair of the sidewalk, municipal undertaking or work, whether the want of repair is the result of nonfeasance or misfeasance, in the same manner and to the same extent as in the case of any other like work constructed by the municipality.  R.S.O. 1990, c. P.50, s. 33 (1). Liability for damage in case of default (2) In case of default by the Ministry to keep the King’s Highway in repair, the Crown is liable for all damage sustained by any person by reason of the default, and the amount recoverable by a person by reason of the default may be agreed upon with the Minister before or after the commencement of an action for the recovery of damages.  R.S.O. 1990, c. P.50, s. 33 (2). Insufficiency of fence, etc. (3) No action shall be brought against the Crown for the recovery of damages caused by the presence or absence or insufficiency of any wall, fence, guide rail, railing or barrier adjacent to or in, along or upon the King’s Highway or caused by or on account of any construction, obstruction or erection or any situation, arrangement or disposition of any earth, rock, tree or other material or thing adjacent to or in, along or upon the King’s Highway that is not on the roadway.  R.S.O. 1990, c. P.50, s. 33 (3). Notice claim (4) No action shall be brought for the recovery of the damages mentioned in subsection (2) unless notice in writing of the claim and of the injury complained of, including the date, time and location of the happening of the injury, has been served upon or sent by registered letter to the Minister within ten days after the happening of the injury, but the failure to give or the insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or insufficiency of the notice and that the Crown is not thereby prejudiced in its defence.  R.S.O. 1990, c. P.50, s. 33 (4); 2002, c. 24, Sched. B, s. 45; 2017, c. 10, Sched. 4, s. 13. (5) Repealed:  2002, c. 24, Sched. B, s. 25. Judgment, how payable (6) All damages and costs recovered under this section and any amount payable as the result of an agreement in settlement of a claim for damages and costs that has been approved of in writing by counsel is payable in the same manner as in the case of a judgment recovered against the Crown in any other action.  R.S.O. 1990, c. P.50, s. 33 (6). Style of action (7) In an action against the Crown under this section, the defendant shall be described as “Her Majesty the Queen in right of the Province of Ontario, represented by the Minister of Transportation for the Province of Ontario” in English or as “Sa Majesté du chef de l’Ontario, représentée par le Ministre des Transports de l’Ontario” in French, and it is not necessary to proceed by petition of right or to procure the fiat of the Lieutenant Governor or the consent of the Attorney General before commencing the action, but every such action may be instituted and carried on and judgment may be given thereon in the same manner as in an action brought by a subject of Her Majesty against another subject.  R.S.O. 1990, c. P.50, s. 33 (7). Counterclaims and third party proceedings (8) Despite any general or special Act, in an action against the Crown under this section, the defendant may set up by way of counterclaim any right or claim, whether the right or claim sounds in damages or not, and may claim contribution or indemnity from or any other relief over against any person not a party to the action, and every such counterclaim and claim may be instituted and carried on and judgment may be given as if such counterclaim or claim was made by a subject of Her Majesty against another subject.  R.S.O. 1990, c. P.50, s. 33 (8). Action to be tried without jury (9) An action against the Crown under this section shall be tried by a judge without the intervention of a jury, and the trial shall take place in the county in which the default occurred unless otherwise ordered upon an application by any party.  R.S.O. 1990, c. P.50, s. 33 (9). Liability not to exceed that of municipality (10) The liability imposed by this section does not extend to a case in which a municipality having jurisdiction and control over the highway would not have been liable for the damage sustained.  R.S.O. 1990, c. P.50, s. 33 (10). Section Amendments with date in force (d/m/y) 2002, c. 24, Sched. B, s. 25, 45 - 01/01/2004 2017, c. 10, Sched. 4, s. 13 - 30/05/2017