Nedjo Bozalo

The appellant suffered a catastrophic spinal cord injury in a cycling accident on a dirt path adjacent to Stone Church Road in Hamilton.

The City brought a summary judgment motion seeking dismissal under s. 44(8) of the Municipal Act, 2001, which exempts municipalities from liability for damages caused by construction, obstruction, or erection on untravelled portions of highways.

The motion judge dismissed the action, finding the accident occurred on an untravelled portion.

The Court of Appeal allowed the appeal, holding that the motion judge applied the wrong legal test.

The correct test requires determining whether the portion of highway was commonly and habitually used by the public for travel, not whether such use was reasonably foreseeable.

The court found the dirt path was commonly and regularly used by pedestrians and cyclists and therefore constituted a travelled portion of the highway, placing it outside the statutory exemption.

This decision addresses the costs arising from a successful summary judgment motion brought by the City of Hamilton, which resulted in the dismissal of the plaintiff's action.

Following the parties' agreement on costs, the court ordered the plaintiff to pay the City of Hamilton an all-inclusive amount of $200,000 for the action and summary judgment motion.

The City of Hamilton moved for summary judgment to dismiss the plaintiff's claim for injuries sustained while cycling on an off-road path adjacent to Stone Church Road East.

The plaintiff, Otto Bello, suffered complete tetraplegia after riding into a culvert.

The City argued the claim was barred by s.44(8) of the Municipal Act, 2001, as the accident occurred on an untravelled portion of a highway.

The court found that clearly marked bicycle lanes were available, and the plaintiff chose an informal, untravelled path.

The court concluded that it was not reasonably foreseeable that cyclists would use the off-road path instead of the provided bicycle lanes, thus granting summary judgment to the City and dismissing the plaintiff's action.

The appellant, Marguerite Crete, appealed a motion judge's declaration that a snow removal provision in her lease was not inconsistent with the Residential Tenancies Act, making her responsible for snow clearing in areas exclusively used by her.

The Court of Appeal affirmed the motion judge's finding that the snow removal provision was not inconsistent with the RTA, despite finding errors in the motion judge's interpretation of certain RTA sections.

The appeal was dismissed, confirming the tenant's responsibility for snow clearing in exclusively used areas.