COURT FILE NO.: CV-19- 00071656 DATE: 2024/10/04

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Otto Bello Plaintiff/Responding Party

J. Patrick Brown and Nic Todorovic for the Plaintiff/Responding Party

- and -

City of Hamilton Defendant/Moving Party

J. Skukowski and Ned Bozalo for the Defendant/Moving Party

HEARD: August 20, 2024

REASONS FOR JUDGMENT

THE HONOURABLE JUSTICE L. C. SHEARD

Overview

Matter before the Court: Motion for Summary Judgment

[1] The defendant, City of Hamilton (the “City”), moves for summary judgment dismissing the plaintiff’s claim. In its motion, the City raises two main issues to be determined on this motion:

Issue #1: Did the plaintiff suffer injuries while riding on the untravelled portion of highway beside Stone Church Road East, in the City of Hamilton, and, as such, his claim is barred by operation of s.44(8) of the Municipal Act, 2001?; and/or

Issue #2: If the accident was caused by the City’s failure to keep a highway in a reasonable state of repair, is the City protected from liability under s. 44(3)(a) of the Municipal Act, on the basis that the City did not know and could not reasonably have been expected to know about the state of repair of the highway or bridge where the accident occurred?

The Claims

[2] On August 4, 2019, while biking with a group of cyclists, the plaintiff, Otto Bello (referred to as “Charles” or the plaintiff), rode into a culvert, breaking his neck, resulting in complete tetraplegia. He is wheelchair-bound, disabled from work, and requires care for the rest of his life.

[3] Charles has sued the City for special damages of $2 million and general damages of $20 million. In his claim, Charles alleges that his injuries were suffered by the negligence and/or public nuisance of the City and its agents, servants and employees, (collectively the “City”) including, but not limited to, that the City failed to design, construct, or repair the area; created a nuisance; allowed the ground to erode away and to fall into a state of disrepair; failed to put up warning signs to prevent the public from accessing the area; and, kept inadequate records.

[4] The relevant stretch of land on which Charles was cycling is a grassy path running behind the guardrail on the south side of Stone Church Road East. Both the path, and the exact location of the accident, can be readily discerned from the record on this motion, which contains numerous photographs, police and expert reports, and the evidence of eyewitnesses, including that of Charles.

[5] The parties and their experts disagree on the label to ascribe to the path. The City’s experts have described it as an “off-road area” located on the south side of the guardrail on the south side of Stone Church Road East in Hamilton. Other witnesses have described it as a “goat track”.

[6] Charles’ experts have described it as “an eroded roadside area in the vicinity of a roadway surface water spillway” and as “a roadside trail” adjacent to the south side of Stone Church Road”. In its report of June 25, 2024, Charles’ expert, “TNS”, describes the land on which Charles was cycling as the “area behind the guide rail [^1] [which] had an unimproved variable surface, sloped ground, drainage features, and exposed steel guide rail posts” (Case Center, p. A1048).

[7] For the purposes of these reasons, I have labelled it the “off-road path”. The photographs of the off-road path and Stone Church Rd. East are important to understand the issues, therefore, key photographs are attached to these reasons.

[8] The parties also do not use the same label to describe the nature of the event of August 4, 2019: at times, the City uses the word “incident” and the plaintiff, “accident”. For the purposes of these reasons, I use the word “accident”.

[9] No inference should be drawn from my choice of labels.

The Defences

[10] The City has defended Charles’ claim, pleading, in part, that Charles’ claim is barred by operation of s.44(8) of the Municipal Act, 2001, S.O. 2001, c.25 (the “Act”) and by s.4 (1) of the Occupiers Liability Act.

[11] Pursuant to s.44(8)(b) of the Act, no claim shall be brought against the City if the accident occurred on an untravelled portion of a highway.

[12] Charles acknowledges that if the accident is found to have occurred on an untravelled portion of the roadway, then s.44(8) operates as a complete bar to Charles’ claim.

Preliminary issue: City’s documentary production is incomplete

[13] Charles submits that this case is not appropriate for summary judgment: there are genuine issues requiring a trial and, based on the record as it now stands, the court will not have a full appreciation of all of the evidence and issues. In part, Charles objects to this matter proceeding by way of a summary judgment motion because the City has failed to comply with undertakings and failed to produce documents related to the design, construction, maintenance, repair, inspection and other documents related to the off-road path.

[14] The City’s position is that it has produced all the documents and records it will ever be able to produce and that any records that it might have had, which have not been produced, are beyond its reach by reason of a cybersecurity attack on the City.

[15] Charles’ concerns respecting the City’s purported failure to answer undertakings had previously been addressed at a case conference with R.S.J. Sweeny. In part to address that issue, the plaintiff brought a motion pursuant to r. 30.10 for production from a City contractor, Gordon Company. In addition, James Gordon, the principal of Gordon Company, was examined by the parties. The transcript of his examination is included in the record before the court on this motion.

[16] Charles’ preliminary objection was considered at the outset of this hearing. In my oral ruling, I found that that the City’s alleged non-production was not a valid reason or basis for dismissing the City’s summary judgment motion: there will be no additional documents available to the trial judge that are not available to the court on this summary judgment motion. As such, on this motion, the court is entitled to presume that the evidentiary record is complete and there will be nothing further if the issue were to go to trial.

Section 44 of the Act

[17] Section 44(8) of the Act reads as follows:

Untravelled portions of highway

(8) No action shall be brought against a municipality for damages caused by,

(a) the presence, absence or insufficiency of any wall, fence, rail or barrier along or on any highway; or

(b) any construction, obstruction or erection, or any siting or arrangement of any earth, rock, tree or other material or object adjacent to or on any untravelled portion of a highway, whether or not an obstruction is created due to the construction, siting or arrangement. 2001, c.25, s.44 (8) . [Emphasis added]

[18] Section 44(1) of the Act reads:

Maintenance

44 (1) The municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge. 2001, c.25, s.44 (1) .

Liability

(2) A municipality that defaults in complying with subsection (1) is, subject to the Negligence Act, liable for all damages any person sustains because of the default. 2001, c.25, s.44 (2) .

Defence

(3) Despite subsection (2), a municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if,

(a) it did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge;

(b) it took reasonable steps to prevent the default from arising; or

(c) at the time the cause of action arose, minimum standards established under subsection (4) applied to the highway or bridge and to the alleged default and those standards have been met. 2001, c.25, s.44 (3) .

Can Issue #1 and/or #2 be decided on a motion for summary judgment?

[19] For reasons to follow, I am satisfied that only Issue #1 can be decided on this motion for summary judgment. Therefore, in this decision, the only issue that I consider is whether, on the record before me, it is possible to determine whether the accident occurred on an untravelled portion of a highway.

[20] With respect to Issue #2, the City asserts that it did not know, and could not reasonably have been expected to have known about the state of repair of the off-road path over which Charles was cycling when the accident occurred. In my view, a trial would be required to determine what the City did or did not know or reasonably could have been expected to know about the state of repair of the portion of land over where the accident occurred.

Disposition of Issue #1: Did the accident occur on an untravelled portion of the highway?

[21] For the reasons set out, I find that the evidence establishes that the accident occurred on an untravelled portion of the highway and that Charles’ claim against the City is barred by s.44(8).

[22] On this basis, the City’s motion to dismiss Charles’ action against it is granted.

Issue #1: Factual Findings

[23] Set out below are my factual findings.

Location of the accident

[24] As noted, there was an ample record before this court, including photographs, showing the off-road path and, also, the exact location of the accident.

[25] The record contains photographs, including those taken on the day of the accident, showing the off-road path: it is a grassy area, running along on the south side of Stone Church Road East, Hamilton, Ontario, on the south (or non-road) side of the guard rail. The photographs show that the grass was trimmed along the south side of the guard rail and a narrow dirt path, where the grass appears to have been worn down: Photo Figure 4, Case Center Master p. B-1-1292, reasons, Appendix 1.

[26] The evidence of James Gordon is that the City contracted his company to mow the grass on the south side of the guard rail, to maintain visibility of the guard rail.

How Charles got to the off-road path

[27] The evidence is, and I find as a fact, that Charles, with ten other members of the Oakville Cycling Club, set out from Hamilton Beach intending to cycle along trails to Brantford. The group had been cycling on the Red Hill Valley Trail – a separate, paved, multi-use trail, part of the Red Hill Valley Trail System. The trail came to an end at Stone Church Rd. E. and Anchor Rd.: Google Maps Photo, August 2022, with description, Case Center Master p. A1134, reasons, Appendix 2.

[28] In cross-examination, Charles agreed that when he and the group of cyclists arrived at the south side of Stone Church Road near Anchor Road, the group stopped (see photograph at A1135). The group did not use the bicycle lanes on Stone Church Road but, instead, crossed the road to take a route that ultimately led them to the off-road (behind the guard rail).

[29] According to Charles’ expert, Walters Forensic Engineering Inc.’s report [^2], after crossing over Stone Church Road, the group travelled on a “worn informal path [which] began at the end of the asphalt and ran 40 m before the guardrail started. The path (i.e. the off-road path) ran adjacent to and south of the guardrail for its 140 m length. The crash occurred 128 m from the east end of the guardrail” (at p. A1084).

[30] On cross-examination, Charles identified a Google maps photograph shown to him, (at A1135), which showed the trail on which the group had been cycling when they reached Stone Church Road East. While Charles could not recall seeing it on August 4, 2019, this photograph clearly shows the bicycle lane on the north side of Stone Church Rd. with signage identifying the bicycle lane and an arrow indicating where bicycles are intended travel: Photo, p. A1135, reasons, Appendix 3.

[31] The City’s motion record also includes photographs taken on the day of the accident. At B-1-1293, the bicycle lane located on north side of Stone Church Road East is clearly visible: Photo, p. B-1-1293, reasons, Appendix 4.

[32] Included in Charles’ Responding Motion Record is a Google photograph dated June 2019, showing the stretch of Stone Church Road near where the accident occurred. That photograph shows the guardrails that extended down both sides of Stone Church Road; the bicycle lane on the north side of the road; and the grassy lands lying to the north and to the south of Stone Church Road: Photo, p. A1138, reasons, Appendix 5.

Where did the accident occur?

[33] Charles and the cycling group ended up on the off-road path located on the “non-roadway side of the guardrail” on the south side of Stone Church Road: (cross-examination of Charles, at B-1-1464). Charles was cycling along the off-road path. He was second in line. The first cyclist swerved to the right and passed to the right of the hole without incident. Charles swerved to the left and fell into the hole, described as a partially-eroded culvert, suffering a severe injury.

Charles’ Expert’s evidence

[34] In response to this motion, Charles put forth the affidavit of his engineering expert, Russell Grant Brownlee, dated June 25, 2024. In cross-examination Mr. Brownlee confirmed his opinion that Stone Church Road was considered a “hybrid” roadway: somewhere between an urban and a rural roadway, in that the roadway was constructed in some areas across a rural cross-section with open drainage, shoulders, and ditches, etc. (Brownlee cross-examination, at p. B-1-1521).

[35] In cross-examination, Mr. Brownlee agreed that the accident occurred on the south side of the guardrail, “not on the roadway side of the guardrail” and that Charles and his group of cyclists chose not to ride in the bicycle lanes available to them on both sides of Stone Church Road.

[36] Although, in his report, Mr. Brownlee had described the off-road path as a “boulevard”, in cross-examination, he conceded that the off-road path did not fall squarely within the definition of a “boulevard” found in the Transportation Authority Manual.

[37] In my view, labelling the off-road path a “boulevard” is not definitive to the issue before the court, nor, as acknowledged by Mr. Brownlee, would the off-road path fall within that definition in the Transportation Authority Manual.

[38] The City acknowledges that the off-road path is located on City-owned land.

Summary:

[39] Based on the evidence, I find that there were clearly-marked bicycle lanes available to Charles. These would have taken him to Chippewa Trail, the next planned leg in the cyclists’ route. Charles did not use either bicycle lane on Stone Church Rd. and, instead, crossed over Stone Church Rd. to use an informal path, and, 40 m later, to use the off-road path.

[40] Having found that the accident occurred on the untravelled portion of the highway, these reasons do not refer to much of the evidence presented on this motion which, in my view, does not assist in the determination of issue #1.

The Law

What is a highway?

[41] Under s.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 a vehicle is defined to include a bicycle and a highway to include:

a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof.

What is the purpose of s. 44(8) of the Act?

[42] The jurisprudence referenced by the parties relating to the purpose of s.44(8) of the Act and its predecessor sections, dates back over 80 years. In this long history, the interpretation of the purpose of that section and its predecessor sections has been consistent.

[43] In Jacob v. Tilbury (Municipality) (1940), [1941] 1 D.L.R. 456 (Ont. C.A.) (“Tilbury”), the purpose and intention of s.480(2) was set out by the court at p. 463, which reads:

…Municipalities in the past have found it impossible, owing to their widespread areas, to keep all parts thereof free from obstacles and other things causing accidents to those who, for their own convenience, pursue an unusual course, and one that invites danger.

As I read the section, the object and intention of the Legislature was to keep travellers upon highways confined to those portions set apart for travel, and if in the future any accident occurred thereon or therein, and was caused by any of the enumerated reasons set out in the section, an action would lie; but, if for any of the enumerated reasons set out in the section accidents occurred outside those portions set apart for travel, no action could be brought.

[44] The court identified that the issue faced by the trial judge (and faced by later courts, including this court), was what constituted the “travelled portions of the highway”. The term was not defined in the Act, accordingly, each case has been decided on its own facts.

[45] In MacDonald v. LaFebvre (“MacDonald”), the Court of Appeal followed Tilbury, quoting from p. 463. The court found that s.443 of the Municipal Act, R.S.O. 1960, c. 249, (the predecessor to s.(44)(3)) was intended “to prevent a municipality becoming liable for some defect existing beyond that part of the highway commonly used by the public.” The court added that the word “travelled” in the statute, did not mean “travellable”.

[46] In Guse v. Thunder Bay, [1998] O.J. No. 3257 (Gen. Div.) (“Guse”), the court followed MacDonald. At para. 10, the court stated that the intent of s.284(3) was “to exclude municipalities from liabilities arising from defects existing beyond the part of the highway commonly used by the public. It protects a municipality from liability for injuries arising from conditions of non-repair in locations where the public would not be expected to go.”

[47] In Ouellette v. Hearst (Town) (“Ouellette”), at para. 20, the court explained that the purpose of s.284(3) (now s.44(8)) was to “protect municipalities from actions brought by drivers who go where they are not expected to go (off the highway)”.

[48] In Grosbeck v. Abram, 2014 ONSC 1674, the court repeated paragraph 10 of Guse (at para. 26) and, at para. 27, quoted from para. 15, noting that the court in Guse had concluded that because the plaintiff “saw fit to pursue a course which led her to a non-travelled portion of the roadway and, while jogging through that area, she came into contact with a concealed culvert”, the applicable provision of the Municipal Act precluded her action for damages, given the location of the accident.

[49] From the date of the introduction of what is now s.44(8) of the Act, the courts have been consistent in their interpretation that the intention behind those sections is to protect the municipality from liability for accidents on its land that occur on a non-travelled portion of the roadway or the highway.

[50] In oral submissions on this motion, counsel for the plaintiff/responding party conceded that if the court were to find that the accident occurred on the untravelled portion of the highway, s.44(8) would apply as a complete bar to a claim against the City.

[51] As first noted in Tilbury, the real issue to be determined by the court, is whether, on the facts before it, the accident occurred on an “untravelled portion of the highway”.

What is the “untravelled portion of a highway”?

[52] As illustrated in the cases referenced below, a determination of the untravelled portion of the highway is determined on a case-by-case basis. The jurisprudence referenced above guides this court in its task.

[53] In MacDonald, the claim arose from a motor vehicle accident between two trucks driving in the opposite directions on a highway that had a “hardened gravel surface”. The trucks collided and one truck hit a concealed stump, located between 18 and 24 inches from the edge of the graveled surface. The driver suffered injuries. The trial judge held the municipality to be liable in negligence.

[54] The trial judge found that the shoulders of the road were a travelled portion of the road and used by the public every day. He also found as a fact that the stump was “on the shoulder of the road” and was concealed by tall grasses which, the judge found, constituted negligence; he described it as “placing a trap on the south shoulder of the road.”

[55] The appellate court disagreed with the trial judge and overturned the decision as against the municipality. The appellate court found the trial judge appeared to have rested his opinion about the use of the shoulder, on his having taken judicial notice of the fact that “when a road has been completed and new shoulders are being constructed, there are signs put up warning the motoring public about the soft shoulders”. The appellate court found that there was “no evidence before the Court that shoulders of a road are used by the public every day in the normal course of travel.” Writing for the appellate court, Laidlaw J. also stated that signs warning the motoring public against the soft shoulder would lead him to deduce “that shoulders of the road are dangerous for travel and are not intended for common or ordinary user” (sic).

[56] The appellate court concluded that “liability to the user of a highway for the purpose of travel is limited to that portion that has been provided and is intended for ordinary and normal use for that purpose, or which has in fact been commonly and habitually used by the public for that purpose.” The court found that the portion of the highway adjacent to the graveled portion was grown over with weeds and high grass, was wholly unimproved “and was not intended by the municipality to be used for travelling any circumstances.” As to its use by the public, the court found that there was no evidence that the portion of the highway where the stump of the tree was located had been used at any time or by any person for the purpose of travel. The municipality was found not liable to the plaintiff.

[57] The facts in Guse involve a pedestrian: the plaintiff had injured her foot and leg in a culvert opening while jogging on city property in an area that was opened as a road allowance, but not on what would be considered the travelled portion of the roadway.

[58] At trial, the parties filed an agreed-upon statement of facts. The court referred to those facts, which included that the defendant city had employed “staff to cut the grass where Guse suffered her injuries, with a lawn mower up to approximately two to three feet from the end of the culvert and, with a weed eater, on an occasional basis, around the culvert opening and in the ditch area.”

[59] In concluding that the accident occurred on an “untravelled” portion of the roadway, the court referred to the photographs showing the location of the culvert, which was marked by a red steel bar, and places where the grass had been cut and where it was “rough and uncared for where the culvert was located.” The court found that “[T]he evidence clearly establishes that the culvert and the area immediately in front of the culvert, where the plaintiff fell, was wholly within the road allowance and, more importantly, within the untravelled portion of the roadway…Certainly, the area was not intended for the common or ordinary use by the public for travel purposes.”

[60] The facts in Guse resemble those in this case. For example, in this case, the evidence is that the City had hired Goodman Company to cut grass along the road allowance adjacent to the guardrails on Stone Church Rd. Also, similar to the facts in Guse, in this case, there was a paved area – namely the bicycle lanes on Stone Church Road – that were specifically intended for the use of cyclists. Finally, similar to Guse, in this case, for their own reasons, Charles and the other members of the Cycling Club chose not to use the paved, well-marked bicycle path and, instead, used an unmarked, worn down path, and ultimately, used the off-road path.

[61] In Falkner v. The Corporation of the Town of Wasaga Beach, the plaintiff was a nine-year-old child who rode his bicycle onto a grassy boulevard running between the street and a shopping plaza parking lot. A ditch and culvert were located at the bottom of the boulevard. The young plaintiff plunged down the ditch onto a concrete pad and damaged his front teeth and upper lip. The defendant municipality moved for summary judgment.

[62] The evidence before the motion judge included photographs taken after the accident, showing that the ditch was not obvious, and also showing that the grass on the boulevard had been trimmed. The evidence also included that of the plaintiff’s parents who stated that they walked from their cottage to the shopping plaza on a regular basis via the grassy boulevard, some ten to twenty feet from the ditch where the culvert was located. The evidence of the plaintiff’s father was that a pathway had been worn across the boulevard.

[63] The municipality’s witness stated that because there were no sidewalks in the area, pedestrians would walk on the shoulder of the road, bicyclists would ride on the road, and that both pedestrians and bicyclists could ride across the grassy boulevard. There were no signs warning of the culvert because there had not been a previous problem. After the child’s accident, the municipality installed a barrier. [^3]

[64] The municipality submitted that the accident occurred outside the travelled portion of the highway and the plaintiff’s claim was barred by operation of s.282(3) of the Municipal Act. At para. 17, the motion judge noted that the plaintiff had asserted that the grassy boulevard fell within the travelled portion of the highway, in that:

This was a residential area. There were no pedestrian crossings on Puccini Drive to indicate that pedestrians or bicyclists were to cross the road elsewhere than in the area where the accident occurred. There is no evidence that anything prevented pedestrians or bicyclists from traversing the grassy boulevard at any point. The photographs show a worn area in the grass, consistent with it being traversed as Mr. and Mrs. Falkner described on their examinations for discovery. Mr. Falkner’s affidavit is not self-serving. Rather, it is consistent with the other evidence in the case. Mr. Romaine contends that the plaintiffs have demonstrated that there is a genuine issue for trial.

[65] Again, in keeping with the issues determined in other cases, the court in Falkner observed that if there was evidence that the accident occurred within the travelled portion of the highway, then there would be a genuine issue as to material facts, and the court could not conclude that s.284(3) barred the action. Had the evidence established the accident occurred outside the travelled portion of the highway, then there would be no genuine issue as to material facts requiring a trial and the action would be statutorily barred.

[66] In her analysis, the trial judge considered the jurisprudence (also referenced in these reasons), noting that:

(i) a municipality’s liability is limited to the portion of the highway provided and intended for ordinary and normal use for the purpose of travel or, which has in fact been commonly and habitually used by the public for that purpose: MacDonald;

(ii) in urban areas it is customary for pedestrians to use the sidewalk and the area lying between them and that, when a pedestrian, having crossed the street and walked across an adjacent grass boulevard to the sidewalk, tripped on a wire strung in the area of the grass boulevard, the municipality was liable: Tilbury;

(iii) in Guse, the facts were distinguishable in that, in that case, the plaintiff chose to leave a concrete pathway specifically provided for travel through a park, to jog in a rough, uncared for, area that was part of the road allowance.

[67] The court concluded that given the evidence that:

(a) the plaintiff’s family had habitually crossed the boulevard to get to the shopping plaza; that there was a worn path in the boulevard indicating that other persons traversed it;

(b) the grassy boulevard was in a residential area with no sidewalks and was near the shopping plaza, such that it would be reasonable to expect that pedestrians and bicyclists would use the boulevard for the purpose of travel;

(c) the municipality had done nothing to restrict access to the boulevard but maintained it in a state that would facilitate, rather than impede, its travel; and,

(d) after the accident, the municipality “quickly” installed a barrier.

all gave rise to a genuine issue as to the material facts to be decided at trial, without which, she could not determine whether the municipality was protected from liability by s.284(3) of the Act.

[68] In Ouellette, the appellate court considered whether the action against the municipality was barred by operation of s.284(3). The facts were somewhat unusual: the plaintiff was travelling on Highway 11 on a very windy day during which, the top of a utility pole fell off and struck the roof of the plaintiff’s vehicle. The trial judge found that s.284 of the Municipal Act was not a bar to the claim. The Town appealed.

[69] At the heart of the appeal was the Town’s argument that because the utility pole was not located within the travelled portion of the highway, s.284(3) barred the plaintiff’s action. The appellate court disagreed, finding that s.284(3) did not apply to the facts of the case. The court found that the plaintiff had been struck and injured when the pole struck his van while he was driving on the highway and that the protection of s.284(3) was intended to protect against actions brought by drivers who go where they are not expected to go (off the highway) but did not protect the Town from liabilities for injuries to persons in vehicles on the highway.

[70] McHardy v. Ball, 2013 ONSC 6564 is a decision of the Divisional Court, upholding the decision of the motions judge, who had dismissed the motion for summary judgment brought by the defendant, City of Barrie (“Barrie”), finding that a trial was required. As here, the issue before the court in McHardy was the meaning of an “untravelled portion of the highway”.

[71] The facts are found in the decision of the motion judge [^4]. The plaintiff was driving northbound on Yonge Street at the intersection with Mapleview Drive East in the City of Barrie when the defendant failed to stop at a red light, colliding with the plaintiff’s vehicle. The collision caused the plaintiff’s vehicle to lose control and strike a traffic signal pole mounted on a raised concrete median in the middle of Yonge Street. The plaintiff suffered a severe brain injury. The plaintiff sued Barrie, alleging that the traffic signal pole failed to break away when struck. Barrie defended the claim on the basis, in part, that the claim was statute-barred because the traffic signal pole was situated on an untravelled portion of the roadway. Barrie’s motion for summary judgment was dismissed by the motion judge who, applying the law as it then was, determined that the “full appreciation test [^5] could only be achieved by way of trial”.

[72] The Divisional Court agreed that s.44(8)(b) could allow for a finding that portions of the highway, such as, for example, a median, could constitute an “untravelled portion of the highway”. However, on the facts of the case, the Court dismissed Barrie’s appeal and upheld the decision of the motion judge.

[73] The Divisional Court noted that the central issue before it was the meaning of an “untravelled portion of a highway”. This had been considered in Ouellette, in which the Court of Appeal “expressed the purpose of the predecessor provision to paragraph 44(8)(b) to be to ‘protect municipalities from actions brought by drivers who go where they are not expected to go (off the highway); …’ (italics added)”.

[74] Barrie argued that the intention of the municipality as to where drivers should go or should not go that should be determinative of the issue. That is: that “the ‘untravelled portion of the highway’ is that portion of a highway which the municipality does not intend will be used by the public in ordinary and normal use.”

[75] The respondent argued that “the issue of where drivers are expected to go or not go is a more objective one that is determined by what is reasonably foreseeable in any given circumstances” (at paras. 7, 8).

[76] The Divisional Court agreed with the respondent stating, at para. 8:

… the concept of expectation contemplated by the Court of Appeal [in Ouellette] for the purposes of paragraph 44(8)(b) refers not to the intention of the municipality but rather to the reasonably foreseeable interaction of the public with the highway, or any portion thereof. To the extent that it is reasonably foreseeable that vehicles on the highway may go on a median, or contact an object on a median, whether voluntarily or involuntarily, a median would constitute a portion of a highway that is travelled.

[77] At paras. 10 and 11, the Divisional Court considered the two possible bases on which to conclude that the median was not an untravelled portion of the highway, each of which entailed requiring a trial for determination. These were:

1. that the median is not a place where drivers are not expected to go. That is, that it is reasonably foreseeable that drivers will enter upon or otherwise contact the median in the normal and in the ordinary and normal use of the highway. To determine that issue, there needed to be a “factual matrix” including the nature of the intersection, and the operating speed of motorists using the intersection for which, the “full appreciation test” would require a trial; and, in the alternative,

2. that the median is a place upon which is reasonably foreseeable that pedestrians will go.

[78] Again, applying the “full appreciation test” approach, the appellate court concluded that, with respect to 1), a trial was required to determine reasonable foreseeability, as evidence would be required as to the nature of the intersection and the operating speed of motorists using the intersection. With respect to 2), a trial would be required to flesh out the evidence as to “the physical layout of the intersection in summer and winter, the operation of traffic signals and extent of pedestrian usage of the median”.

[79] It is worth noting that McHardy was decided prior to Hryniak v. Mauldin, 2014 SCC 7 (“Hryniak”), in which the Supreme Court of Canada rejected the “full appreciation test.”

[80] Grosbeck was also a motion for summary judgment brought by the defendant, The Corporation of the County of Middlesex (“Middlesex”), who sought to dismiss the action and crossclaims against it. The action related to a single vehicle accident that occurred at an intersection. The evidence included a collision reconstruction report stating that the vehicle side-slipped when attempting to turn right and “vaulted” off the shoulder of the road before hitting an embankment, almost 5 meters below the point of take-off.

[81] Middlesex defended the claim, in part, on the basis that the damages were caused “by the condition or configuration of the untravelled portion of a highway”. A plaintiff expert opined that the severity of the collision may have been lessened had the slope of the embankment been less, or a barrier been present. There, as here, there was evidence that after the accident, Middlesex made some changes, including improving or reducing the slope to make it less severe.

[82] The court in Grosbeck reviewed the jurisprudence relating to s.44(8) and its predecessor sections. The motion judge followed McHardy stating, at para. 52, that “the important issue in relation to the applicability of s.44(8) is the reasonable foreseeability of the ‘interaction of the public with the hazard’”. Middlesex asserted that it was not reasonably foreseeable that a driver would fail to stop at the intersection and would go off road, considering there had been no prior accident at that intersection. Moreover, Middlesex argued, if it was expected to foresee this accident, s.44(8) would never apply.

[83] The plaintiff submitted that the facts were “identical” to McHardy in that the embankment was a “fixed object adjacent to the travelled portion of the roadway.” In addition, the plaintiff submitted that the evidence given by its witness was that, in reconstructing the slope after the accident, Middlesex took into account the safety considerations, recognizing that it had employed “an inadequate, clear zone leading to a ‘too severe slope’, which contributed to the plaintiffs’ injuries.”

[84] At para. 60, the motion judge concluded that

…the significant contentious issue on the motion was whether the clear zone and drainage ditch embankment was an integral part of the highway. Was it reasonably foreseeable that vehicles on a highway may go onto this clear zone area voluntarily or involuntarily? Can it be found on this motion that it was not reasonably foreseeable that the public would go on the shoulder of the road, whether voluntarily or involuntarily.

[85] On that basis, the motion judge concluded that she could not “reach a fair and just determination of the merits of” Middlesex’s defence in that she could not “find the necessary facts and resolve the dispute whether it is reasonably foreseeable that drivers will enter upon the clear zone area and the drainage ditch embankment” (at para. 61).

[86] The last case referenced by the parties and relevant to this issue is Nicholson v. Town of Penetanguishene, 2018 ONSC 199. This decision relates to three motions: the plaintiff’s motion to amend the claim; the defendant’s motion for summary judgment dismissing the claim; and the plaintiff’s motion for summary judgment respecting liability.

[87] In his oral decision, the motion judge stated that despite his view that the incident occurred on the untravelled portion of the municipal highway sufficient to bring it within the scope of s.44 of the Act, he was not prepared to grant summary judgment.

[88] Nicholson is distinguishable. Both on its facts and, unlike in this case, because the court in Nicholson did not have a clear, or complete evidentiary record before it.

The Law on Summary Judgment

[89] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

[90] As set out in Hryniak, at para. 49, there will be no genuine issue requiring a trial:

…when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.”

[91] To be appropriate, summary judgment must provide a “fair and just adjudication” that allows the judge to “find the necessary facts and resolve the dispute. [T]he standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.” [^6]

[92] Rule 20.04 (2.1) of the Rules of Civil Procedure sets out the powers of the court on a motion for summary judgment:

(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

(1) Weighing the evidence.

(2) Evaluating the credibility of a deponent.

(3) Drawing any reasonable inference from the evidence.

[93] Hyrniak offers a “roadmap” for a summary judgment motion, at para. 66:

On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04 (2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04 (2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[94] It is now trite law that on a summary judgment motion:

(1) Parties are expected to put their best foot forward and the court will assume that all necessary evidence has been tendered;

(2) A motion judge is entitled to presume that the evidentiary record is complete and there will be nothing further if the issue were to go to trial; and

(3) A motion judge is not required to resort to the summary judgment enhanced powers to remedy a party’s evidentiary shortcomings.

[95] In this case, I am satisfied that the court has been provided with a full and complete evidentiary record and that there will be no further evidence relating to issue #1, were this action to proceed to trial. On the record before the court, and without relying on any of the additional fact-finding powers, I am satisfied that I have been able to find the necessary facts, and to apply the relevant legal principles to those facts, to determine that the accident occurred on an untravelled portion of the highway.

Analysis

[96] The evidence is unchallenged that the City provided bicycle lanes on both sides of Stone Church Road. These were identified by appropriate and recognizable signage and by lines and markings on the surface of the road. The evidence is also unchallenged that the bicycle lanes were in proper condition for use by cyclists.

[97] While I conclude that the City intended cyclists to use the bicycle lanes, the question that must be addressed here, is whether the interaction of the public with the hazard namely, as described by the plaintiff, a partially-eroded culvert, in the off-road path, was reasonably foreseeable.

[98] The plaintiff asks the court to infer that the presence of a worn-down path is sufficient evidence that the off-road path was “commonly and habitually used by the public for the purpose of travel”. I do not accept that submission.

[99] The plaintiff put forth the affidavit of Jan Anderson who stated that he was “familiar with the area of Stone Church Road and Anchor Road, where there are no sidewalks, and that he was aware of “a worn-down path on the south side of Stone Church Rd.” that had been there for many years prior to August 2019. He stated that he had seen pedestrians and cyclists using this path in the years prior to 2019 and that “some years ago”, he had lost control of his bicycle when cycling on this “worn-down path” when his front tire went into an eroded part of the path which “appeared to have been eroded from a washout”. Mr. Anderson could not recall the date.

[100] Mr. Anderson’s evidence is vague as to when he used the off-road path, and when he saw others using it. In particular, he does not mention whether, at the time of the accident, the off-road path was commonly and habitually used by the public for the purpose of travel.

[101] Other evidence put forth by the plaintiff is that the condition of the culvert was such that it could not have been used for travel - certainly not for cyclists, given the deterioration of the culvert, which, the plaintiff’s expert opines, was not a recent event.

[102] Mr. Anderson also mentions the absence of sidewalks but makes no mention of whether the bicycle lanes were available during the time-period he is describing. In my view, the presence of bicycle lanes – clearly marked and in good condition – is a significant fact to be considered when determining whether the interaction of the public with the hazard, and, in particular, the cycling public, was reasonably foreseeable.

[103] In my view, the facts in this case are more analogous to those in Guse, in which, as here, the plaintiff chose not to use a pathway specifically provided for travel – here, the bicycle lanes – and to travel along an uncared-for area here, an unmarked, “worn out path” and, further along, the off-road path.

[104] The facts in this case are very different from those in a case such as Falkner, in which there were no crossings for bicycles and the plaintiff, and his family all testified that they had regularly used the grassy median (the so-called boulevard) as a way to get to the shopping plaza. Here, the evidence supports no such finding: there were bicycle lanes provided for cyclists.

[105] The evidence leads me to conclude that Charles and his fellow cyclists sought to avoid riding on any road, even Stone Church Road, which was designed to accommodate bicyclists. As noted in the Walters Report, the plaintiff was riding a “cyclocross bicycle with off-road tires” and the agenda for the group of cyclists was to use “the multi-use scenic trails in Hamilton and a trail extending south towards Caledonia” (at para. 5.1, p. A1196).

[106] The Walters Report distinguishes the “paved multi-use trail” the plaintiff had been on from the “worn informal path” where, it states, the accident occurred (at p. A1195). I agree with that distinction: the off-road path was not a “multi-use scenic trail”.

[107] On the facts of this case, I cannot find that it was reasonably foreseeable that cyclists would reject using the bicycle lanes provided for their use, and, instead, to travel along an unmarked, “worn informal path” and then on the off-road path, located on the non-road side of the guard rail, situated mere feet from the very bicycle lanes provided by the City.

[108] I find that the facts of this case place the City squarely within the protection of s.44(8) which courts have consistently held was intended to protect municipalities from liability in recognition of the reality that, owing to their widespread areas, municipalities cannot keep all parts of those areas free from obstacles and other things that might cause accidents to those who, for their own convenience, pursue an unusual course that invites danger.

[109] I find that the choice made by Charles, for his own convenience or pleasure, was to pursue an unusual course that invited danger. As such, he cannot look to the City for liability for the accident that resulted from that choice.

Conclusions: Did the accident occur on the untravelled portion of the highway?

[110] For the reasons set out, I conclude that the accident occurred on the untravelled portion of a highway (i.e. Stone Church Road East) and that s.44(8) operates as a complete bar to Charles’ claim against the City.

Disposition:

[111] The City’s motion for summary judgment is granted and the action against it is dismissed.

Costs:

[112] As the successful party, the City is presumptively entitled to its costs of this motion and of the action.

[113] The parties are urged to attempt to reach an agreement on costs. If they are unable to do so, written costs submissions may be made as follows:

1. The parties’ written costs submissions are not to exceed three pages, double-spaced, together with draft bills of costs, evidence of docketed time, and copies of any relevant offers to settle.
2. Within 21 days of the date of the release of this decision, the City shall deliver its written costs submissions,
3. Within 14 days of service of the City’s costs submissions, the plaintiff is to deliver his responding submissions,
4. Within 7 days of service of the plaintiff’s responding submissions, the City may deliver its reply submissions, if any, not exceeding one page in length.
5. If no submissions are received within 35 days of the date of the release of these reasons, the parties shall be deemed to have resolved the issue of the costs and no decision shall be made by this court.

L. Sheard J.

Released: October 4, 2024

Appendices

B-1-1292 Appendix 1 Reference: Road Safety Assessment by Karim and Madani, Figure 4 "Police photograph, facing west, showing the off-road path on the south side of Stone Church Road East.", dated April 6, 2023, found at Exhibit B to the Affidavit of Abdul Madani.

B-1-653 A1134 Appendix 2 This SV image is from August 2022 showing a view looking south on Arbour Road to the intersection with Stone Church Road. The multi purpose trail is located to the right of the pole with the green bicycle sign. That sign has not changed since an SV image dated August 2011. The sign was not present in an SV image dated June 2009.

A608 A1135 Appendix 3 This SV image is from June 2019 showing the Reserved Bike Lane sign located alongside the west bound lane of Stone Church Road west of Arbour Road.

A609 B-1-1293 Appendix 4 Photograph from the Police Investigation report depicting the bicycle lane signage on Stone Church Road.

B-1-654 A1138 Appendix 5 This SV image is from June 2019 showing the Bicycle Trail sign and Greenbelt Route sign above alongside the west bound lane of Stone Church Road. The concrete curb outlet and accident location at the south side of the road is indicated by the red arrow.

A612

COURT FILE NO.: CV-19- 00071656 DATE: 2024/10/04 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Otto Bello Plaintiff/Responding Party - and – City of Hamilton Defendant/Moving Party REASONS FOR JUDGMENT L. Sheard J. Released: October 4, 2024

Footnotes

[^1]: I understand the term “guide rail” and “guard rail” to be interchangeable. I use “guard rail” and “guardrail” in these reasons. [^2]: Dated July 5, 2024, Case Center, p.A1083. [^3]: On this motion, the plaintiff did lead evidence of changes made by the City after Charles’ fall, such as additional signage and barriers. As in Falkner, in this case, the plaintiff has sued in negligence. In my view, evidence as to what the City did after Charles’ accident is not relevant to a determination of whether the location of the accident was on a travelled or untravelled portion of the highway. [^4]: 2012 ONSC 1095 [^5]: The “full appreciation” test was set out in Combined Air Mechanical Services v Flesch, 2011 ONCA 484. It was appealed to the Supreme Court of Canada, which found that “the Ontario Court of Appeal placed too high a premium on the “full appreciation” of evidence that can be gained at a conventional trial”: Hryniak v. Mauldin, 2014 SCC 7. [^6]: Ibid, at para. 50.