Court Dismisses Action on the Basis of use of an “Untravelled” Highway
In Bello v. City of Hamilton, 2024 ONSC 5457, the Court examined whether the plaintiff’s personal injury action ought to be dismissed on the basis that the plaintiff was cycling on an untraveled potion of highway in the City of Hamilton.
Facts
The plaintiff was biking with a group of cyclists along Stone Church Road East in Hamilton, when he rode into a culvert, breaking his neck and rendering him wheelchair-bound.
On the date of the accident, the plaintiff along with members of the Oakville Cycling Club, were cycling along the Red Hill Valley Trail System. The trail came to an end and the cyclists took a route which led them off road behind the guard rail on Stone Church Road East.
The plaintiff sued the City for $2 million in special damages and $20 million in general damages, alleging that his injuries arose as a result of the negligence/public nuisance of the City as it had failed to design construct or repair the area, allowed the ground to erode away and failed to put up warning signs preventing public from accessing the area.
The land in question was a grassy area running along the south side of Stone Church Road East, Hamilton, (or non-road) side of the guard rail. A picture taken on the date of the incident depicted grass that had been trimmed along the south side of the guard rail as well as a narrow dirt path, where the grass appeared to be worn down.
The City had a contractor which mowed the grass on the south side of the guard rail, to maintain visibility of the guard rail.
In the decision, Justice Sheard attached a photograph of the area that was submitted in the materials on the motion:
The plaintiff expert report stated that the group travelled on a worn informal path which began at the end of the asphalt and ran 40 m before the guardrail started. The off-road path ran adjacent to the south guardrail for its 140 m in length. The crash occurred 128 m from the east end of the guardrail.
Importantly, there was a bicycle lane on the north side of Stone Church Road, with signage identifying the bicycle lane and an arrow indicating where bicycles were to travel. The plaintiff and the other cyclists had opted not to ride in the bicycle lane available to them (located on both sides of Stone Church Road).
Issues
The City moved for summary judgment dismissing the plaintiffs’ claim on the basis of two issues:
- Did the plaintiff suffer injuries while riding on the untraveled portion of highway in the City of Hamilton such that the action is barred by s. 44 (8) of the Municipal Act; and
- If the accident was caused by the City’s failure to keep a highway in a reasonable state of repair, is the City protected from liability under s. 44(3)(a) of the Municipal Act on the basis that the City did not know and could not reasonably have been expected to know about the state of repair of the highway where the accident occurred.
Justice Sheard determined that only issue #1 could be decided on a motion for summary judgment, whether the accident occurred on an untraveled portion of a highway. A trial was necessary to determine what the City knew or did not know regarding the state of repair of the portion of land where the accident occurred.
The Law
Pursuant to section 44(8) of the Municipal Act:
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. 2001, c.25, s.44 (8).
Section 44(1) of the Municipal Act states:
Maintenance
44 (1) The municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge. 2001, c.25, s.44 (1).
Liability
(2) A municipality that defaults in complying with subsection (1) is, subject to the Negligence Act, liable for all damages any person sustains because of the default. 2001, c.25, s.44 (2).
Defence
(3) Despite subsection (2), a municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if,
(a) it did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge;
(b) it took reasonable steps to prevent the default from arising; or
(c) at the time the cause of action arose, minimum standards established under subsection (4) applied to the highway or bridge and to the alleged default and those standards have been met. 2001, c.25, s.44 (3).
Analysis
The City’s motion to dismiss the plaintiff’s action was granted.
The definition of “highway” under s. 1 of the Highway Traffic Act includes:
a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof.
Justice Sheard considered the purpose of section 44(8) of the Municipal Act as articulated by the jurisprudence, which consistently has stated that municipalities have found it impossible to keep all parts free from obstacles for those who, for their own convenience, pursue an unusual course and one that invites danger.
The Courts have been consistent in their interpretation that the intention behind these relevant sections of the Municipal Act is to protect the municipality from liability for accidents on its land that occur on a non-travelled portion of the roadway or the highway.
Justice Sheard further noted that, the determination of whether the accident occurred on a “untravelled portion of the highway” is a case-by-case analysis.
After reviewing a number of decisions involving accidents on untravelled potions of highways, Justice Sheard concluded that, while the City clearly intended for cyclists to use its bicycle lanes in the area, the key question was whether the interaction of the public with the hazard was reasonably foreseeable.
The plaintiff requested the Court infer that the presence of a worn down path is sufficient evidence that the offroad path was commonly and habitually used by the public for the purpose of travel.
Justice Sheard rejected the plaintiff’s submission. The evidence on the motion suggested that the area in question could not be used for travel, given the deterioration of the culvert which was not a recent event. Further, the presence of bicycle lanes in the area was significant in determining whether the interaction of the public with the hazard was reasonably foreseeable.
The decision notes that the plaintiff chose not to use a pathway specifically provided for travel, and to travel along an uncared for area which was unmarked (while a clearly marked and maintained option was available).
Justice Sheard did not believe that it was reasonably foreseeable that a cyclist would reject using the bicycle lanes provided for their use and travel along an informal path, located on the nonroad side of the guard rail situated mere feet from the bicycle lanes provided by the City. The City’s motion was granted with costs to be later determined.
Closing Remarks
In determining whether a portion of municipal property would be considered an “untraveled” portion of highway, the Court will consider whether an interaction between the hazard and the public was reasonably foreseeable. As part of this analysis, the Court will consider the surrounding area and what alternatives of travel have been made available to the public for access to the general area.
Simply because an area is maintained or groomed, does not equate to it being intended for use by the public for travel purposes.