In Bello v. Hamilton (City), the Ontario Court of Appeal confirmed the limited scope of a statutory defence. The defence, set out in s. 44(8) of the Municipal Act, is one that municipalities rely upon to avoid liability for injuries that occur in areas adjacent to highways. The Court of Appeal held that if the public commonly and habitually uses an area adjacent to a highway for ordinary and normal travel then the statutory defence in s. 44(8) of the Municipal Act does not protect the municipality regardless of whether the municipality intended that the area would be used for travel.
Facts
In 2019, the plaintiff (appellant) was cycling with a group on a dirt path beside Stone Church Road East in Hamilton when the group’s leader, cycling directly in front of the appellant, came upon a culvert. The ground around the culvert was eroded leaving a large hole that tall grass obscured. The cyclists had minimal time to respond to the hole around the culvert. The appellant sustained catastrophic injuries when he swerved suddenly in response to the hole.
Lower Court Ruling
The City of Hamilton brought a summary judgment motion to have the action dismissed. The City argued that the injury occurred on an “untravelled portion of a highway” as defined in s. 44(8) of the Municipal Act and therefore the statutory municipal duty alleged under s. 44 did not arise. The trial judge granted summary judgment to the City, accepting its argument on the basis that the municipality did not intend for the path to be used for ordinary and normal travel and that it was not reasonably foreseeable that the appellant would use that path.
Appeal Court’s Decision
The Ontario Court of Appeal reversed that ruling. It held that courts must interpret the “untravelled portion of a highway” defence narrowly and in light of the facts of each case. The defence does not broadly shield municipalities from liability for dangerous conditions adjacent to roadways. The Court of Appeal relies on the authoritative interpretation of the predecessor provision to s. 44(8) as set out by the Court of Appeal in MacDonald v. LeFebvre et al., 1962 CanLII 111 (ON CA).
Specifically, the statutory defence in s. 44(8) does not apply in two circumstances. The defence does not apply if either:
- a municipality intends the portion of a highway be used for ordinary and normal travel, or
- the public does use the portion of a highway commonly and habitually for ordinary and normal travel.
Ultimately, the Court of Appeal held that summary judgment was inappropriate given the genuine issues about what duty the City owed and whether it breached that duty by failing to address the dangerous culvert along the path. The appeal was granted, and the matter restored to the trial list.
A takeaway for plaintiff’s counsel is to carefully plead and documentevidence of how the public used the portion of highway that is at issue in their case, as well as the extent to which the municipality knew or ought to have known of such use.
