An Appeal Court decision municipality insurers will be talking about

Ontario’s Court of Appeal has narrowed when a municipality may use the defence of an ‘untravelled road’ to shield itself from liability in personal injury cases involving people who take trails close to highways that are not intended for public use.  

The decision will be of interest to insurers defending municipalities in personal injury liability cases. 

The appellate court has re-established the second part of a two-prong test to determine if a road is ‘untravelled.’

First, to use the ‘untravelled road’ defence in a liability case, a municipality must prove the trail causing the injury wasn’t intended for public use. Second, the municipality has to prove the public is not in fact commonly using the path that causes the injury.

“This decision reiterates the high threshold to defeat a claim based on s. 44(8) of the Municipal Act,” Jonathan Thoburn and Aidan Fishman of Borden Ladner Gervais LLP write in a blog for Canlli Connects. “This provision may still apply in certain circumstances, but its use has been narrowed considerably, as a municipality will need to prove that the area in question not only was not intended for public use, but was not, in fact, ‘commonly and habitually’ used by members of the public.”

What happened

In Bello v. Hamilton (City), Otto Bello suffered a catastrophic spinal cord injury in a cycling accident in 2019.

He was part of a group of 10 cyclists travelling the length of two mixed-use recreational trails. They had completed the first trail (the Red Hill Valley Trail) and were journeying towards the second (the Chippewa Trail), via a paved path running parallel to Stone Church Road East in Hamilton.

When they came to the end of the paved path, they had two options: cycling on the area of Stone Church Road designated as a bike lane, essentially, the paved shoulder of the road, or follow a worn, dirt path just outside the guardrail of Stone Church Road.

The group chose the dirt path. Bello said they did so for safety reasons, to keep themselves apart from motor vehicle traffic next to the portion of the highway marked as a bike lane.

The dirt path crossed a culvert that passed underneath both Stone Church Road and the dirt path. Neither the lead cyclist nor Bello, riding behind him, saw until the last seconds that the ground around the culvert had been badly eroded, creating a large hole hidden by tall grass.

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The lead cyclist saw the hole at the last moment and swerved right to avoid it. Bello, right behind him, swerved to the left and fell. Bello broke his neck and suffered complete tetraplegia. He must now use a wheelchair and will need care for the rest of his life.

Bello sued the municipality for $20 million, plus special damages of $2 million.

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What the lower court said

S. 44(8) of the Municipal Act says no liability action shall be brought against a municipality for damages caused by “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.”

The case turned on whether the cyclists were biking on “any untravelled portion of a highway.”

The lower court judge focused on the fact that the municipality did not intend for the bikers to use a path other than the bike path at the side of the road. The judge ruled the dirt path the bikers took was ‘untravelled,’ since there was no reasonable expectation a cyclist would use it.

“[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 located on the non-road side of the guard-rail, situated mere feet from the very bicycle lanes provided by the city,” the lower court justice ruled. “The choice made by [Bello], 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.”

The lower court dismissed Bello’s claim.

What the Appeal Court found

Ontario’s Appeal Court found the lower court justice erred because the analysis must include whether the trail is commonly used, regardless of whether or not the municipality intended it to be used.

“The inquiry is factual: even if a portion of the highway is not intended for travel, does the public nevertheless commonly and habitually use it for travel?” the Court of Appeal wrote. “If so, that portion of the road is not ‘untravelled,’ and it falls outside the liability exclusion in s. 44(8).

“It is not controversial, in the present case, that [Bello’s] accident occurred in a place that was not intended by the municipality to be used for ordinary travel by any mode whatsoever.” the Court of Appeal wrote. “What the motion judge had to resolve is whether the place the accident occurred was nevertheless commonly and habitually used by the public for travel.

“The motion judge did not address that question, but instead asked whether it was reasonably foreseeable that cyclists would use it in this way. This was an error.”

The Appeal Court noted that, even though the legal exclusion from liability in s. 44(8) of the Municipal Act does not apply, municipalities may still do things to absolve them of liability.

“What constitutes negligence may well turn on whether potential users have been directed not to use the path by signage or barriers, or discouraged from using it through other measures, and the effectiveness of those measures,” the Appeal Court states.

David Gambrill

David has twice served as Canadian Underwriter’s senior editor, both from 2005 to 2012, and again from 2017 to the present.