Case: Bello v. Hamilton (City), 2025 ONCA 758
Keywords: cyclist; culvert; catastrophic spinal cord injury; Municipal Act, 2001, S.O. 2001, c. 25
Synopsis:
The Appellant Mr. Otto Bello is part of a group of ten cyclists cycling the length of two mixed-use recreational trails. While journeying towards the second trail, the cyclists are presented with two options (i.e., a proverbial ‘fork in the road’):
- cycle on the paved shoulder of the road; or
- follow a worn, dirt path on the outside of the guardrail.
The group selects the dirt path “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”. (See para. 1).
What happens next is tragic. The dirt path crosses a culvert. The ground around the culvert is badly eroded, creating a large hole hidden by tall grass – though cut 12 days before. (See para. 2). Neither the lead cyclist nor the Appellant sees the hole “until the last seconds”. Whereas the lead cyclist swerves to avoid the hole, the Appellant falls in – breaking his neck and suffering complete tetraplegia (i.e., a catastrophic spinal cord injury) in the process. The Appellant must now use a wheelchair and will require care for the rest of his life. (See paras. 1, 2).
The Appellant brings an action against the Respondent City of Hamilton alleging negligence and, in the alternative, public nuisance for failure to maintain the road. He seeks general damages of $20M and special damages of $2M. (See para. 3). The Respondent brings a motion for summary judgment pursuant to 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 (Sheard J.) agrees with the Respondent, dismissing the action on the basis that the accident occurred on the “untravelled portion” of the highway. (See para. 4). The Court of Appeal (Miller, Paciocco, and Coroza JJ.A.) allows the appeal, finding the accident occurred “on a travelled portion of the highway…s. 44(8) does not apply” and restoring the action to the trial list. (Sees para. 30, 33).
Importance:
What is the obligation of municipalities to maintain highways? In this case, the Court of Appeal provided important clarification on the analytical framework used to answer this question.
Section 44 of the Municipal Act, 2001 says that municipalities have jurisdiction and must keep highways in a state of repair that is reasonable in the circumstances. Where a municipality does not maintain that standard, s. 44(2) indicates they are liable for “all damages any person sustains”. However, as with many things in law, there are important exceptions. Section 44(8) says:
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. (See para. 8; emphasis added).
Of practical importance here, the Motion Judge and the Court of Appeal took different views on what “untravelled portion” means and how courts determine whether s. 44(8) is engaged/not engaged. The Court of Appeal determined that the “correct interpretation” of s. 44(8) is a question of law, reviewable on a standard of correctness. Interestingly, citing Housen v. Nikolaisen, 2002 SCC 33, at para. 36 and Mask v. Silvercorp Metals Inc., 2016 ONCA 641, at para. 37, the Court of Appeal observed that “where the law applied to the factual matrix proceeds from an error in statutory interpretation”, it also “constitutes an error in law, reviewable for correctness”. (See para. 13).
As described by the Court of Appeal, the Motion Judge “followed doctrine articulated by the Divisional Court in McHardy v. Ball, 2013 ONSC 6564” and asked “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.” (See para. 10). The Motion Judge’s conclusion was that the dirt path in question was “untravelled” in the sense that there was no reasonable expectation a cyclist would use it. Since bicycle lanes were available, the Motion Judge found,
- it was not “reasonably foreseeable” that the Appellant would choose “for his own convenience or pleasure…to pursue an unusual course that invited danger”; and
- the Appellant “cannot look to the City for liability for the accident that resulted from that choice.” (See para. 11).
The Court of Appeal determined that the Motion Judge’s analysis fell into error; that she “addressed the wrong question”. The question that should have been asked: was the dirt path herein “commonly and habitually used by the public for the purpose of travel”? (See para. 28). For the Court of Appeal, this reflects a reading of s. 44(8) which allows 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”. (See paras. 15-16). The salient issue is “actual use”, to be determined on a case-by-case basis, and on the facts. (See para. 17).
For the Court of Appeal, the Motion Judge erred by emphasizing reasonable foreseeability –relevant to the ultimate issue of negligence – rather than whether the place the accident occurred was commonly and habitually used for travel. (See para. 21). On this point, the Court of Appeal referred to the analysis of the Court of Appeal for Alberta in Pyke v. Calgary, 2023 ABCA 304 at para. 55 which found that the McHardy decision (i.e., the case upon which the Motion Judge’s analysis was based), was wrongly decided. (See paras. 24-26).
In this case, the Court of Appeal found the record was adequate to make a determination without remitting the matter for a rehearing:
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. (See para. 30).
The Court of Appeal noted that, simply because s. 44(8) is not engaged herein, this does not “end the liability inquiry”; that a municipality can still argue that “the state of repair was ‘reasonable in the circumstances’ per s. 44(1), so the municipality is not liable under s. 44(2)” and a finding of negligence may turn on the direction given to potential users (e.g., signage or barriers). (See para. 19).
A final point of interest: the Court of Appeal took issue with the Motion Judge’s characterization of the Appellant’s decision (i.e., upon arriving at the fork in the road herein) as being taken in the pursuit of “convenience or pleasure” and “an unusual course that invites danger”. The Court of Appeal emphasized that the evidence suggested the group chose the route that they chose “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”. (See para. 32).
It remains to be seen whether the Supreme Court of Canada may wish to lay down some guiding principles with respect to correct interpretation of the Municipal Act and its analogues across Canada, among other issues of potential interest to the Court (e.g., the application of the standard of review).
Counsel for the Appellant: Robert Trenker and Nick Todorovic (Adair Goldblatt Bieber LLP, Toronto)
Counsel for the Respondent: Jay Skukowski and Ned Bozalo (Blaney McMurtry LLP, Toronto)
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