As urban life slowly spills into rural stretches of land, residents increasingly walk, cycle and drive in areas that municipalities never intended for ordinary and normal use, referred to as “untravelled portions of the highway” under section 44(8) of the Municipal Act (the Act”) [1].  Driven perhaps by a sense of adventure or convenience, it seems residents increasingly walk or jog along shoulders of roads; and cyclists often choose to cycle in off-shoulder or non-paved areas that are not designated as bicycle paths. 

When injuries occur in such places, plaintiffs often claim that municipalities were negligent in failing to maintain these areas free of hazards to prevent injuries, notwithstanding the municipalities clear intent to designate these areas as “untravelled”.  Section 44(8) of the Act was intended to be an absolute shield to offer immunity to municipalities from these types of claims.  The much-awaited decision of the Court of Appeal in Bello v. Hamilton (City)[2] has loosened municipalities’ immunity to allow claims where plaintiffs can demonstrate that common and habitual use by pedestrians or cyclists can turn “untravelled portions of highways” into “travelled portions”, thus defeating the statutory immunity.  Nevertheless, statutory immunity remains firmly in place, requiring a case-by-case analysis of each set of unique facts.

Background

In 2019, Mr. Otto Bello was riding with a group of cyclists, all members of the Oakville Cycling Club, in an “off-road area” when his bicycle hit a hole near a culvert that caused him to fall.  He broke his neck and suffered complete tetraplegia, causing him to be wheelchair bound and needing care for the rest of his life.  Mr. Bello sued the City of Hamilton for general and special damages in the amount of $22 million for negligence in failing to maintain the area of the accident and public nuisance. 

From the start the characterization of the area of the fall was an issue for both sides.  The evidence was that Mr. Bello and fellow cyclists planned to cycle two trails in the Hamilton area that day.  They completed the first trail on a paved multi-use trail known as the Red Hill Valley Trail.  When that trail ended, they crossed over to Stone Church Road which had paved and demarcated bicycle lanes running along both sides of Stone Church Road.  At Stone Church Road, the group had the choice of taking the designated bicycle route or proceed on a worn-down grassy area along the guardrail.  For the sake of creating a visual, the “on-road” paved bicycle lane and the “off-road” worn down path was divided by a guardrail.  The City’s landscaper would trim the grass along the guardrail to ensure foliage does not obstruct the guardrail’s visibility. 
 
The group chose to travel on the off-road path to avoid safety issues created by vehicles travelling along Stone Church Road.  A culvert ran underneath Stone Church Road and the worn-down path.  The ground around the culvert on the worn path eroded and caused a hole in the ground which the first cyclist in the formation was able to avoid, but Mr. Bello could not, causing his fall.    

The plaintiff did not dispute the municipality’s assertion that the fall area was not intended for ordinary use by any mode of transportation.  However, the plaintiff argued the location of the incident was used for normal and ordinary travel by both pedestrians and cyclists, demonstrated by its worn down nature and the Affidavit evidence of a witness that the path was used by both pedestrians and cyclists prior to the date of the accident. 
 
In August 2024, the City of Hamilton brought a motion for summary judgment to have the claim dismissed under section 44(8) of the Act.  The motion judge dismissed the plaintiff’s claim on the basis that the incident occurred on an “untravelled portion of the highway”.  The plaintiff appealed on the only issue of whether the accident occurred on an “untravelled portion of the highway” pursuant to section 44(8) of the Act.[3] 

In October 2025, the Court of Appeal reversed the motion judge’s decision, on the basis the area of the fall was “commonly and habitually used by the public for the purpose of travel” and therefore, was a “travelled” area which defeated the City’s ability to bring a motion for summary judgment.[4]   

Statutory Framework

Statutory immunity under section 44(8) of the Act reads as follows:
   
If an untravelled portion of the highway is determined to be a travelled portion, then under section 44(1) of the Act the municipality is required to keep the area in a state of repair that would be reasonable under the circumstances, considering the character and location of the highway.  The municipality is liable if it fails to keep the area in a state of repair under section 44(2) of the Act.[5] 
 
Even if an area is found to be in a state of non-repair, the municipality could be absolved of liability under section 44(3) of the Act if it can prove that it did not know and could not reasonably have been expected to have known about the state of disrepair of the highway; or it took reasonable steps to prevent the state of disrepair from rising, or if at the time of the incident, it met the minimum standards applicable to the area.[6]
 
Motion Judge’s Analysis
 
The motion judge based her analysis of whether the location of the accident occurred on an “untravelled portion of the highway” on the reasonable foreseeability principle set out by the Divisional Court in McHardy v. Ball[7].  Her reasoning was that whether a municipality is immune from liability under s. 44(8) of the Act depends on whether “the interaction of the public with the hazard” was reasonably foreseeable.  If the interaction of the public with the hazard was not reasonably foreseeable, then an area would be determined to be “untravelled”.[8]  
 
The motion judge concluded that the path was “untravelled” because the City had a reasonable expectation that cyclists would travel on the bicycle route and it was not reasonably foreseeable to the City that cyclists would travel along the worn down path when a paved bicycle route was available along the guardrail.[9]  The fact that Mr. Bello chose “for convenience or pleasure” to take an unusual and potentially risky path, should not rob the City of the immunity afforded to it by s. 44(8) of the Act.   
 
Court of Appeal’s Analysis
 
The Court of Appeal rejected the motion judge’s application of the reasonable foreseeability test to interpreting the liability exclusion under s. 44(8).  The Court approached the analysis from a focus on what constitutes “travelled portion” of a highway, as opposed to an “untravelled portion” which the Court of Appeal has interpreted in Macdonald v. Labavre[10], and concluded that a highway is “travelled” if it is:
 

1. limited to that portion that has been provided and is intended for ordinary and normal use for that purpose or,
2. which has in fact been commonly and habitually used by the public for that purpose.[11]

 
The second part of the test means that a municipality may not have intended an area to be used for normal and ordinary travel by pedestrians or cyclists, however, if it is commonly and habitually used as such, then the statutory immunity of s. 44(8) would not be engaged.  There is a line of cases that supports this proposition, even though the application of the test requires a case-by-case analysis.[12]   
 
In the final analysis, the motion judge should not have relied on the reasonable foreseeability test in McHardy, but instead should have applied the two-part test in Macdonald.  The focus must be on whether the area was commonly and habitually used by the public and not whether it was reasonably foreseeable that cyclists would use it that way. 
 
The Court of Appeal did not remit the matter back for a new hearing.  It concluded the evidentiary record was complete for the Court to find the area where Mr. Bello fell to be a “travelled” portion of the highway. 
 
Points of Reflection
 

• A Court may find that a road not intended to be a “travelled” area may be deemed to be “travelled” if is it commonly and habitually used by pedestrians and cyclists.
• A finding that an area is “travelled” does not amount to liability against the municipality; rather it merely means that a municipality must respond to the plaintiff’s allegations and cannot rely on the statutory immunity under s. 44(8) of the Act.
• The maintenance obligations a municipality may have in relation to a “travelled” area depends on the character and location of the area. 
• A municipality has several defenses available to it which can defeat the plaintiff’s claim
• An off-road path travelled by cyclists and pedestrians does not attract the same minimum maintenance obligations under the Minimum Maintenance Standards for Municipal Highways[13] as would for example a sidewalk intended for normal and ordinary travel
• A municipality can mitigate its risk and defeat a negligence claim if, having knowledge of “travelled” areas, it erects signage and barriers discouraging potential users.