When a highway isn’t a highway, what do municipalities need to know?

In the recent decision of Bello v. Hamilton (City)1, the Court of Appeal held that an “untravelled portion of a highway” is one that is not intended by the municipality to be used for ordinary and normal travel or is not in fact “commonly and habitually used” by the public for the purpose of travel.

In August 2019, Mr. Bello decided to ride his bike on an off-road dirt/grassy path beyond the guardrail beside a roadway in the City of Hamilton. Unfortunately, Mr. Bello rode into a culvert/eroded ground and suffered significant injuries. 

The City of Hamilton moved for summary judgment, arguing that the action was barred by s. 44(8) of the Municipal Act, 2001. Section 44(8) of the Municipal Act, 2001 provides that no action shall be brought against a municipality for certain defects adjacent to or on an untravelled portion of a highway. The motion judge granted summary judgment in favour of the city, finding the location was an untravelled portion and the claim barred by s. 44(8). On appeal, the Court of Appeal for Ontario reversed the motion decision, restored the action to the trial list, and held that the motion judge applied the wrong legal test for s. 44(8).

The Court of Appeal held that the motion judge applied the wrong legal test when determining whether the area where the incident occurred was untravelled. The Court of Appeal relied on the decision in MacDonald v. LeFebvre et al., [1962] O.R. 495 (C.A.), 32 D.L.R. (2d) 696 in concluding that section 44(8) “would not apply if the municipality intended that the portion of the highway in question be used for ordinary and normal travel or if the public commonly and habitually used that portion for ordinary and normal travel.” Whether a portion of a roadway is commonly and habitually used for travel is a factual inquiry. 

The Court of Appeal held that a finding that a portion of the roadway is not untravelled does not end the liability inquiry and there may still be no liability found against the City of Hamilton as this matter proceeds. However, the City of Hamilton must now defend an action against it for an incident which occurred beyond the intended roadway. 

Therefore, this decision seems to increase the maintenance obligations of municipalities to inspect and maintain those areas which lie beyond the portion of the roadway which the municipality designates for the public’s use. Municipalities likely now have to expand their patrolling protocols to check for commonly used paths adjacent to their roads and take additional steps to address these unauthorized paths. 

[1] 2025 ONCA 758