Court of Appeal for Ontario

Date: November 7, 2025

Docket: COA-24-CV-1165

Judges: Miller, Paciocco and Coroza JJ.A.

Between

Otto Bello Plaintiff (Appellant)

and

City of Hamilton Defendant (Respondent)

Counsel:

• Robert Trenker and Nick Todorovic, for the appellant
• Jay Skukowski and Ned Bozalo, for the respondent

Heard: May 26, 2025

On appeal from the order of Justice Elizabeth C. Sheard of the Superior Court of Justice, dated October 4, 2024.

Decision

B.W. Miller J.A.:

Facts

[1] The appellant suffered a catastrophic spinal cord injury in a cycling accident in 2019. He had been part of a group of ten cyclists who had intended to cycle the length of two mixed-use recreational trails. They had completed the first trail (the Red Hill Valley Trail) and were journeying towards the second (the Chippewa Trail), via a paved path running parallel to Stone Church Road East in Hamilton. When they came to the end of the paved path, there were two options: to cycle on the area of Stone Church Road designated as a bike lane (essentially, the paved shoulder of the road) or to follow a worn, dirt path just outside the guardrail of Stone Church Road. The group chose the dirt path. On the evidence of Mr. Bello, they did so to keep themselves apart from motor vehicle traffic, to which they would have been exposed if they had used the portion of the highway marked as a bike lane.

[2] The dirt path crossed a culvert that passed underneath both Stone Church Road and the dirt path. Unfortunately, neither the lead cyclist nor Mr. Bello, who was riding second, saw until the last seconds that the ground around the culvert had been badly eroded, creating a large hole. Although the grass around the culvert had been mowed 12 days earlier, by the time of the accident the hole was hidden by tall grass. The lead cyclist saw the hole at the last moment and successfully swerved to the right to avoid it. Mr. Bello, right behind him, swerved to the left and fell. Mr. Bello broke his neck and suffered complete tetraplegia. He must now use a wheelchair and will need care for the rest of his life.

[3] Mr. Bello brought an action against the City of Hamilton alleging negligence and, in the alternative, public nuisance for failure to maintain the road. He is seeking general damages of $20 million and special damages of $2 million.

[4] The City brought a summary judgment motion seeking to have the action dismissed under s. 44(8) of the Municipal Act, 2001, S.O. 2001, c. 25, which provides that "no action shall be brought against a municipality for damages caused by … (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". The motion judge found that s. 44(8) barred the claim on the basis that the accident occurred on an "untravelled portion" of the highway.

[5] The motion judge accordingly allowed the motion and dismissed the action.

Issues on Appeal

[6] The sole issue on appeal is whether the motion judge erred in determining that the appellant's claim is barred by s. 44(8) of the Municipal Act, 2001.

The Statutory Framework

[7] Section 44 of the Municipal Act, 2001 governs the obligation of municipalities to maintain highways. Under s. 44(1), a municipality with jurisdiction over a highway must keep it in a state of repair that is reasonable in the circumstances. If a municipality fails to do so, s. 44(2) provides that the municipality is liable for "all damages any person sustains because of the [municipality's] default."

[8] Section 44(8) carves out two exceptions to this general liability rule:

(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.

The Motion Judge's Reasons

[9] It was uncontested that the area where the accident happened was within the road allowance of the highway. As the motion judge framed it, "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'", such that the municipality could benefit from the operation of s. 44(8).

[10] To determine whether the place of the accident was on an "untravelled portion", the motion judge followed doctrine articulated by the Divisional Court in McHardy v. Ball, 2013 ONSC 6564, 17 M.P.L.R. (5th) 116. As the motion judge understood it, McHardy directed her to determine "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."

[11] The motion judge concluded that the dirt path was "untravelled" because there was no reasonable expectation a cyclist would use it. The key factor in her analysis was the existence of the bicycle path on Stone Church Road, which she found that the cyclists ought to have used. The motion judge held it was not "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". She also held that "the choice made by [the appellant], 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."

[12] The motion judge dismissed the action.

Standard of Review

[13] What constitutes the correct interpretation of the "untravelled portion of a highway" in s. 44(8) of the Municipal Act, 2001 is a question of law, reviewable on a standard of correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8. Accordingly, where the law applied to the factual matrix proceeds from an error in statutory interpretation, it constitutes an error in law, reviewable for correctness: Housen, at para. 36, Mask v. Silvercorp Metals Inc., 2016 ONCA 641, 132 O.R. (3d) 161, at para. 37.

Analysis

[14] Section 44(8) provides municipalities with the means to summarily defeat certain actions without the necessity of a trial. No action is permitted where the cause of damage is located within "the untravelled portion" of the highway.

[15] The authoritative interpretation of the predecessor provision to s. 44(8) – a provision using nearly identical language, although framing the exclusion in terms of the "travelled portion" instead of the obverse, "untravelled" – was set out by this court in 1962 in MacDonald v. LeFebvre et al., [1962] O.R. 495 (C.A.), 32 D.L.R. (2d) 696. In that decision, at p. 500, this court affirmed a finding of the trial judge that the travelled portion of a highway comprises that part of a highway that 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." This court thus resolved the ambiguity in the meaning of "travelled" by holding that the legislature intended that the predecessor to s. 44(8) would not apply if the municipality intended that the portion of the highway in question be used for ordinary and normal travel or if the public commonly and habitually used that portion for ordinary and normal travel. MacDonald thus read the section as allowing for the possibility that a portion of the highway, although perhaps not intended for ordinary travel, was nevertheless used that way, and if so, the municipality could not resort to the statutory exclusion.

[16] We were not taken to any cases in which a court found motor vehicles "commonly and habitually" used a portion of highway that was not intended for ordinary travel. Nevertheless, there are cases in which pedestrians had injured themselves on portions of the highway that were not intended for travel either by motor vehicle or on foot, yet were found to be part of the travelled portion for the purpose of pedestrian travel because of habitual use by pedestrians: see, for example, Bland v. The King, [1941] O.R. 273, [1941] 4 D.L.R. 414 (C.A.); Falkner (Litigation Guardian of) v. Wasaga Beach (Town) (2004), 50 M.P.L.R. (3d) 277 (Ont. S.C.) (although the question of whether the area where the accident occurred was a travelled portion was not decided but remitted to trial). These cases suggest that the second branch of the MacDonald interpretation is not limited to travel by motor vehicles: common and habitual use by the public for travel by other means – on foot or by bicycle – can render an area "travelled", and thus outside the ambit of s. 44(8)(b).

[17] The second branch of MacDonald can require a difficult factual determination, particularly in the context of travel by means other than motor vehicle. It is easy to conceive of situations where cyclists and pedestrians adapt for their use portions of the highway that would be untravelled by automobiles, particularly where no other paths are provided. As the case law interpreting s. 44(8) and its predecessors has developed, it has allowed that informal paths can become travelled by pedestrians and cyclists where not otherwise proscribed. This requires the determination of how much use is needed to satisfy the criterion of common and habitual to oust the operation of s. 44(8). This can only be resolved on a case by case basis, on the facts at hand.

[18] Whatever the standard, the salient issue is actual use. The inquiry is factual: even if a portion of the highway is not intended for travel, does the public nevertheless commonly and habitually use it for travel? If so, that portion of the road is not "untravelled", and it falls outside the liability exclusion in s. 44(8).

[19] Such a finding does not end the liability inquiry. It simply requires the municipality to answer the plaintiff's case. A municipality may still argue, for example, that the state of repair was "reasonable in the circumstances" per s. 44(1), so the municipality is not liable under s. 44(2). Furthermore, what constitutes negligence may well turn on whether potential users have been directed not to use the path by signage or barriers, or discouraged from using it through other measures, and the effectiveness of those measures.

[20] In this case, the motion judge erred by departing from the factual standard established in MacDonald. It is not controversial, in the present case, that the appellant's accident occurred in a place that was not intended by the municipality to be used for ordinary travel by any mode whatsoever. What the motion judge had to resolve is whether the place the accident occurred was nevertheless commonly and habitually used by the public for travel. The motion judge did not address that question, but instead asked whether it was reasonably foreseeable that cyclists would use it in this way.

[21] This was an error. Any question about the reasonableness of the use might assist in resolving the question of what the municipality intended, and would be relevant in the subsequent analysis of whether the municipality was negligent. It does not answer the legal and factual question of whether that part of the highway was commonly and habitually used for travel, and therefore not part of the untravelled portion.

[22] There is no unfairness to a municipality in this. Where usage has become common and habitual, a municipality can be taken as having notice that in event of misadventure, it may have to answer to allegations of negligence at trial. It can manage its risk through proper maintenance or through the use of signage or barriers prescribing the use of the path.

[23] The motion judge was misled by McHardy, a decision of the Divisional Court that purported to follow MacDonald but inadvertently departed from it. In McHardy, a motor vehicle crashed into a utility pole located on the median and the question arose as to whether the median was located on a travelled or untravelled portion of the highway. The Divisional Court affirmed the motion judge's dismissal of the municipality's summary judgment motion, finding that whether the median was on an untravelled portion of the highway was a triable issue.

[24] The court in McHardy erred (as recently chronicled by the Alberta Court of Appeal in Pyke v. Calgary, 2023 ABCA 304, 64 Alta. L.R. (7th) 28, at para. 55) by misapplying obiter dicta from this court in Ouellette v. The Corporation of the Town of Hearst (2004), 70 O.R. (3d) 204 (C.A.), 237 D.L.R. (4th) 504, leave to appeal refused, [2004] S.C.C.A No. 226. In Ouellette, part of a utility pole broke off during a windstorm and struck the plaintiff's vehicle, which was travelling along the highway. The town sought to rely on the exclusion, as the utility pole was anchored in what it characterized as the untravelled median. This court rejected that submission, at para. 18, holding the exclusion was "inapplicable" as the damage occurred to a vehicle in an intended driving lane.

[25] The court in Ouellette stated, at para. 20, that the purpose of the predecessor provision was "to protect municipalities from actions brought by drivers who go where they are not expected to go (off the highway); it does not protect them from injuries to persons in vehicles on the highway". That statement was made in obiter in the context of litigation that did not require the court to determine what constituted the travelled and untravelled portions of the highway.

[26] The Divisional Court in McHardy, at para. 8, took the language of expectation from Ouellette instead of the twofold criteria articulated in MacDonald and adopted the following approach:

We agree with the respondents that the concept of expectation contemplated by the Court of Appeal 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 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 the highway that is travelled.

[27] But Ouellette did not supplant MacDonald, or the two bases upon which it can be established that a portion of the highway is travelled or untravelled. MacDonald provides that the travelled portion of the road encompasses: (1) areas intended for the ordinary and normal use of the public for the purpose of travel (whether by motor vehicle, bicycle, or otherwise); or (2) areas commonly and habitually used by the public for the purpose of travel. MacDonald does not inquire into foreseeability or expectations. Nor did Ouellette apply or even refer to MacDonald on the facts.

[28] Accordingly, in this case, the motion judge addressed the wrong question. Because she asked whether the appellant's use of the dirt path was reasonably foreseeable, and not whether the dirt path was "commonly and habitually used by the public for the purpose of travel", she used the wrong legal test for s. 44(8). I would therefore allow the appeal.

[29] The relief requested by the appellant is that this court make the necessary factual findings on the existing record and determine the motion. In the alternative, the appellant asks that the motion be remitted for a new hearing on an expanded record that would allow for the appellant to adduce new evidence to clarify whether the use of the dirt path by cyclists post-dated the creation of bicycle lanes.

[30] In my view, it is not necessary to remit the motion for a rehearing. The record before the court is adequate for that determination. The evidence established that there is a path, that at the time of the accident it was commonly and regularly used by pedestrians and cyclists for travel, and that it was used in this way for an undetermined but considerable length of time. I would find that the accident occurred on a travelled portion of the highway, and s. 44(8) does not apply.

[31] These findings are rooted in the evidentiary record before us. One of the appellant's witnesses, Mr. Jan Anderson, stated in his affidavit that in his observation, the dirt path had been used by both cyclists and pedestrians over many years prior to the accident in August 2019, and that he had cycled it himself. The motion judge discounted this evidence on the basis that the witness did not expressly state that his observations came after the shoulder of the highway had been designated as a bicycle path. With respect, her rejection of Mr. Anderson's evidence as dated was speculative. Mr. Anderson's evidence was otherwise uncontradicted.

[32] Finally, the motion judge's characterization of the decision of the cyclists to take the dirt path as the pursuit of "convenience or pleasure" and "an unusual course that invites danger", (using the language of Jacob v. Tilbury (Town) (1940), [1941] 1 D.L.R. 456 (Ont. C.A.), [1940] O.W.N. 530, at p. 463, per Fisher J.A.), was at odds with the uncontradicted evidence of the appellant and three other cyclists riding with him that day. Their evidence was they chose that route not because it was scenic or exciting but rather because it appeared to them to be the safest means of transit between two recreational trails: physical separation from the roadway reduced the risk of the cyclists being hit by a motor vehicle.

Disposition

[33] I would allow the appeal and restore the action to the trial list. I would award costs of the appeal in the amount of $10,000, inclusive of disbursements and HST, as agreed by the parties. I would leave the determination of costs of the motion below to the trial judge.

Released: November 7, 2025

"B.W. Miller J.A."

"I agree. David M. Paciocco J.A."

"I agree. Coroza J.A."