Ontario Court of Appeal to Municipalities on “Untravelled” Portions of Roadways: “Look Out (for) Bello!”
On November 7, 2025, Justice Bradley W. Miller, writing on behalf of a three-judge panel of the Ontario Court of Appeal, released their decision in Bello v. Hamilton (City) 2025 ONCA 758.
This matter concerned an appeal of a successful summary judgment motion brought by the municipality, the City of Hamilton, dismissing the claim brought by the plaintiff, Mr. Otto Bello.
Background:
In 2019, the plaintiff was injured in a cycling accident and suffered a catastrophic spinal cord injury. At the time of the incident, Mr. Bello was operating his bicycle with a group of nine other cyclists who intended to cycle the length of two mixed-use recreation trails in the Hamilton area. The group of cyclists had finished the first trail and were enroute towards the second by way of a paved path running parallel to Stone Church Road East in Hamilton.
However, this paved path ended prior to their intended second destination trail. The cyclists had two options to proceed to their destination:
- To cycle on Stone Church Road East in the designated bike lane (the paved shoulder of the road) or;
- Follow a worn, dirt path outside the guardrail of Stone Church Road.
The group of cyclists elected to take the dirt path. It was the evidence of Mr. Bello that the group made this choice to keep themselves as far away from the motor vehicle traffic on the busy street.[1]
The dirt path intersected with a culvert (tunnel or pipe which channels water) under Stone Church Road. Unfortunately, the ground around this culvert was badly eroded, creating a large hole. Furthermore, the hole was obscured by tall grass, despite the fact that the grass around the culvert had been mowed by the Municipality via its contractor, approximately 12 days before the accident.
Mr. Bello was riding his bicycle and was second in the formation. While the lead cyclist was able to swerve at the last second to avoid the hole, Mr. Bello was not able to avoid the hole and fell, breaking his neck and suffering complete quadriplegia. He must now permanently use a wheelchair and receive care.[2]
Mr. Bello initiated a claim against the City of Hamilton alleging negligence and public nuisance for failure to maintain the road. The City brought a summary judgement motion seeking to have the action dismissed under s. 44(8) of the Municipal Act, 2001. The motion judge allowed the motion and dismissed the action.
Legislative Provisions:
Section 44 of the Municipal Act, 2001 imposes obligations on municipalities to maintain highways within their jurisdiction. Section 44(1) requires that municipalities keep highways in a state of repair that “is reasonable in the circumstances”. A municipality that fails to do so would be liable for “all damages any person sustains because of the default” of the municipality.
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 (emphasis added), whether or not an obstruction is created due to the construction, siting or arrangement.[3]
Decision of Motion’s Judge on Summary Judgment:
Neither of the parties contested that the accident occurred in an area which was within the road allowance of the highway. The key issue to be determined was whether the accident occurred on an “untravelled portion of the highway” such that the liability defence contained in s.44(8)(b) would apply.
The motion judge, using the doctrine articulated by the Divisional Court in McHardy v. Ball, 2013 ONSC 6564, sought to examine “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”.
The motion judge concluded the dirt path was “untravelled” because there was no reasonable expectation a cyclist would use it. For the motion’s judge, the existence of the bicycle path on the shoulder of Stone Church Road was sufficient for her to find that the formal bike path was what the cyclists ought to have used in the circumstances.
To the motion judge, 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” when bicycle lanes provided by the City were “situated mere feet” away.[4]
The motion judge found that the choice made by the plaintiff, “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”.[5]
Decision of the Court of Appeal:
The Court of Appeal began by outlining that the correct interpretation of “untravelled portion of a highway” within s. 44(8) was a question of law and reviewable on the standard of correctness.
Next, the panel surveyed the caselaw on the matter. The ONCA panel noted that the authoritative interpretation of the predecessor provision to s. 44(8) was set out in the Court of Appeals’ previous decision in MacDonald v. LeFebvre et al., [1962] O.R. 495 (C.A.)
In that case, the Court of Appeal affirmed a finding of a 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.”[6]
Any ambiguity in the meaning of “travelled” was resolved by holding that the legislature intended the previous iteration of s. 44(8) would not apply if “the municipality intended that portion of the highway in question be used for ordinary and normal travel or if the public commonly or habitually used that portion for ordinary and normal travel.[7]
In essence, MacDonald read into the section that the municipality could not rely on the statutory exclusion in section 44(8) if the portion of the highway, although not intended for ordinary travel, was nevertheless used that way.[8]
Next, the Court of Appeal examined a number of cases in which pedestrians had injured themselves on portions of a highway that were not intended for travel either by motor vehicle or on foot, which nonetheless were found to be part of the travelled portion of the highway because of habitual use by pedestrians.[9] For the unanimous panel of the ONCA, this suggested that the interpretation in MacDonald is not limited to travel by motor vehicles but also extends to travel by other means, inclusive of on foot or by bicycle, such that it can render an area “travelled” and therefore outside the capture of s.44(8)(b).[10]
The core question for determination is therefore as follows:
“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).”[11]
However, the Court of Appeal noted that the determination of how much use is needed to satisfy the criterion of common and habitual use to displace the operation of s.44 (8) must be made on a case-by-case basis.
Furthermore, the ONCA noted that even if the portion of the road is found not to be “untravelled,” this is not a fatal blow to the municipality on liability. The municipality is still free to raise that the state of any repairs of the subject portion of the road was “reasonable” and therefore the municipality is not liable under the s.44(1)–(2) analysis. The Court noted that negligence in these cases would turn on whether potential users were directed or discouraged against using the path by measures such as signage or barriers as well as the effectiveness of those measures.[12]
According to the Court of Appeal, the motion judge erred by departing from the legal framework set out in MacDonald. The motion judge was free to (and indeed did) find that the location of the accident was not intended by the municipality to be used for ordinary travel by any mode whatsoever. However, the motion judge did not address whether the place of the accident was nonetheless commonly and habitually used by the public for travel.
Furthermore, the Court of Appeal found that the motion judge was misled by the Divisional Court decision of McHardy v. Ball, 2013 ONSC 6564, which had reframed the s.44(8) analysis as:
“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 the highway that is travelled.”
The Court of Appeal, in this decision, held that by citing McHardy, the motion judge misapplied the law by focusing her analysis on whether the plaintiff’s use of the dirt path was reasonably foreseeable and not whether the dirt path was commonly or habitually used by the public for travel. It was on this basis that the ONCA granted the appeal.
The Court of Appeal also found that it was not necessary to remit the motion for rehearing, and instead was able to make its own determination on the motion.
In making its own determination, the Court of Appeal found that there was ample material in the evidentiary record to determine that the dirt path at the time of the accident was commonly and regularly used by pedestrians and cyclists for travel, and that it had been used this way for an undetermined but considerable length of time.
The Court of Appeal also noted that the motion judge inappropriately rejected affidavit evidence of some of the plaintiff’s witnesses that the dirt path in question was used by cyclists and pedestrians many years before the 2019 incident.
The Court of Appeal also opined that the motion judge unfairly characterized the decision to use the dirt path over the bike lane as “convenience or pleasure” when there was uncontradicted evidence that the plaintiff and three other cyclists riding with him that day stated that they chose the route because it appeared to give the most safety and physical separation from the roadway and motor vehicles.[13]
Conclusion and Takeaways:
This decision provided clarification and guidance on the correct approach to the analysis and application of s. 44(8) of the Municipal Act. The Court affirmed that the analysis as set out in MacDonald is correct, and that the use of Hardy is a misapplication of the law.
The Court also affirmed that a critical question for determination of whether an accident site constitutes an “untravelled highway” is whether the public nevertheless commonly and habitually uses the area in question for travel despite the fact that the portion of the roadway is not intended for travel.
[1] Bello v. Hamilton (City) 2025 ONCA 758, at para 1.
[2] Ibid, at para 2.
[3] Municipal Act, 2001, S.O. 2001, c. 25 as section 44 (8)
[4] Bello, at para 11.
[5] Ibid.
[6] Ibid, at para 15.
[7] Ibid.
[8] Ibid.
[9] See Bland v. The King, [1941] O.R. 273; Falkner (Litigation Guardian of) v. Wasaga Beach (Town) (2004), 50 M.P.L.R. (3d) 277.
[10] Bello, at para 16.
[11] Ibid, at para 18.
[12] Ibid, at para 19.
[13] Ibid, at paras 31-32.