On November 7, 2025, the Ontario Court of Appeal delivered a significant ruling in Bello v. Hamilton (City), 2025 ONCA 758, that overturned a lower court’s summary judgment granting immunity to the City under section 44(8) of the Municipal Act. This section bars claims for accidents on an “untravelled portion of a highway.” The Court narrowed and refined previous interpretations of this provision.
Background
The case arose from a catastrophic cycling accident on August 4, 2019. The plaintiff was cycling with a group on a dirt off-road path adjacent to Stone Church Road East in Hamilton when he struck a culvert, resulting in a broken neck and tetraplegia. Bello sued the City of Hamilton, alleging negligence.
The City sought summary judgment based on section 44(8), arguing immunity applied because the accident occurred on an untravelled portion of a highway.
Lower Court Decision
The motion judge granted summary judgment for the City, heavily relying on the existence of a paved bicycle path adjacent to the off-road trail and a precedent from the Divisional Court, McHardy v. Ball, 2013 ONSC 6564. According to that decision, the key factor under section 44(8) was whether the municipality could reasonably foresee public use of the off-road path. Since the City built the paved bike lane, the judge concluded the off-road path was not reasonably foreseeable for travel and thus untravelled.
The motion judge also discounted affidavit evidence attesting to frequent use of the off-road path, finding it unclear if it referred to before or after the paved path’s construction.
Court of Appeal’s Analysis
On appeal, the Court of Appeal rejected the lower court’s reliance on foreseeability, reaffirming that section 44(8) does not apply if the area in question is either intended by the municipality for ordinary travel or is commonly and habitually used by the public for travel—regardless of whether the municipality anticipated such use.
The Court criticized McHardy as wrongly framing the test around municipal foresight rather than the factual question of common and habitual use.
Specifically, the Court found the motion judge erred in framing the inquiry as whether cyclists would reasonably be foreseen using the off-road path instead of the adjacent bike lane. The correct question is whether the public in fact commonly and habitually used the off-road path.
The Court rejected the dismissal of affidavit evidence as speculative and emphasized the plaintiff’s unchallenged testimony that he chose the off-road path for safety, not recreational reasons.
Crucially, finding that section 44(8) immunity does not apply does not automatically mean the municipality will be held liable. The municipality may still argue that the highway portion was reasonably maintained, with the assessment informed by whether the municipality intended or improved the path for travel. The municipality can also rely on other statutory defences under the Municipal Act.
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