Ontario Court of Appeal Explains What Counts as an “Untravelled Portion” of a Highway

Bello, the appellant, was part of a group of cyclists travelling between two recreational trails in Hamilton in 2019. When their paved path ended, they chose a worn dirt path beside Stone Church Road (a highway) instead of the adjacent bike lane to avoid vehicular traffic. The dirt path crossed a culvert where erosion created a large hole hidden by tall grass. The cyclist ahead of Bello swerved to avoid it; Bello, riding behind, did not see it in time, crashed, and suffered a catastrophic spinal cord injury. He sued the City of Hamilton for failing to maintain the area.

Section 44(1) of Ontario’s Municipal Act governs a municipality’s obligations to maintain highways. Section 44(1) requires municipalities to keep a highway in a state of repair that is reasonable in the circumstances. However, section 44(8) carves out certain exceptions to this obligation. One of those exceptions is “any untravelled portion of a highway, whether or not an obstruction is created due to the construction, siting or arrangement.”

What the Court Said

The main issue in this case is whether the City can avoid liability under section 44(8) of the Municipal Act by characterizing the dirt path where the accident occurred as an “untravelled portion” of the highway, thereby barring Bello’s claim.

The Court held that the proper approach comes from MacDonald v LeFebvre (“MacDonald”), which says a portion of roadway is travelled if either:

1. the municipality intended it to be used for ordinary travel; or

2. the public has commonly and habitually used it for travel.

The Court emphasized that the second branch, actual public use, is what matters. The motion judge relied on McHardy v Ball, where the Divisional Court applied a foreseeability test instead of the MacDonald test. The Court of Appeal explained that the judge in McHardy had misread another case, Ouellette v Hearst, and mistakenly turned the analysis into a question about what use was “reasonably expected.” This evidence may help clarify the municipality’s intent and could be relevant to the negligence analysis. However, it does not resolve the separate issue of whether that portion of the highway was commonly and habitually used for travel.

Ouellette did not change the rule. It simply dealt with different facts and did not replace MacDonald. The Court in Ouellette explained, in obiter, that the purpose of the predecessor to s. 44(8) is to protect municipalities from claims by drivers who venture into areas where vehicles are not expected to travel, not from injuries suffered by people using the highway as intended. This comment was made in a case that did not require the Court to decide what constitutes the travelled versus untravelled portions of the road. As such, this approach should not be applied.

Following MacDonald, the Court found that the dirt path beside Stone Church Road was commonly and regularly used by cyclists and pedestrians. Evidence showed it had been used this way for years. That made it part of the travelled portion of the highway, even if the City never intended it to be used and even if a bike lane existed nearby. Because the path was travelled, the City could not rely on s. 44(8) to avoid Bello’s lawsuit.

What About Alberta? Comparison with Pyke v City of Calgary

Section 533 of the Municipal Government Act (“MGA”) contains similar wording to Ontario’s Municipal Act, stating that a municipality is not liable for damage caused:

(b) by or on account of any construction, obstruction or erection or any situation, arrangement or disposition of any earth, rock, tree or other material or thing adjacent to or in, along or on a road that is not on the travelled portion of the road.

In Pyke v Calgary (City), the Alberta Court of Appeal confirmed that the concept of the “travelled portion” under the MGA must be interpreted consistently with the longstanding MacDonald approach: it encompasses both the parts of the roadway intended by the municipality for ordinary and normal travel, and those portions that are in fact commonly and habitually used by the public for that purpose. Importantly, the Court emphasized that the inquiry does not turn on what the municipality could reasonably foresee or expect, rejecting the foreseeability-based analysis adopted in McHardy.

By reaffirming that the “travelled portion” refers to areas intended by the municipality for ordinary traffic or areas that the public in fact commonly and habitually uses for travel, Pyke confirms that actual use, not municipal expectations, governs the analysis. This interpretation aligns with Bello.

Takeaways for Municipalities

For municipalities, Bello v Hamilton underscores that the “untravelled portion” immunity under section 44(8), and arguably under section 533 of the MGA, is narrow and cannot be relied on simply because an area was not intended for public travel. What matters is actual public use. If pedestrians or cyclists commonly and habitually use an informal or unmarked path, it may legally become part of the travelled portion of the highway. Evidence of regular public use effectively puts a municipality on notice that it may need to maintain the area or take steps to restrict access. Signage, barriers, and other measures can help demonstrate that an area is not meant for travel and reduce risk exposure. Overall, the decision highlights the importance of monitoring informal paths and responding promptly when the public has adopted them for routine travel.

As municipal liability can be a complex interplay between statutory interpretation and case law, obtaining legal advice on potential risk exposure is always advisable. Contact Anthony Burden or Justin Denis or any member of Field Law’s Municipal Group for advice.

Link to decision: Bello v Hamilton (City), 2025 ONCA 758

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