News + Insights

On November 7, 2025, the Court of Appeal for Ontario released its decision in Bello v Hamilton (City), 2025 ONCA 758, an important decision providing long-overdue clarity on the scope of a municipality’s liability for its highways. The issue on appeal was the proper interpretation of section 44(8) of the Municipal Act, 2001 which immunizes municipalities from liability for damages suffered on the “untravelled portion of a highway.” 

Retained as appeal counsel, AGB partner Robert Trenker acted successfully for the plaintiff/appellant, obtaining an order that the motion judge had erred in holding that section 44(8) barred his claim against the City, and restoring the action to the trial list so that it could be decided on its merits. 

Factual Background and Procedural History 

The plaintiff suffered a catastrophic spinal cord injury when he fell into an eroded culvert while cycling on a dirt path. The dirt path was adjacent to the paved roadway, but within the road allowance. The plaintiff commenced a $22 million action against the City of Hamilton alleging negligence for failing to adequately maintain the path. The City successfully sought summary judgment, dismissing the action on the basis that it was barred by section 44(8). 

Relying on the Divisional Court’s 2013 interpretation of section 44(8) in McHardy v. Ball, 2013 ONSC 6564—which, until Bello, was the most recent appellate authority on the issue—the motion judge granted summary judgment dismissing the action on the basis that the action was barred by the “untravelled portion” immunity. 

The Court of Appeal Reverses the Dismissal and Clarifies the Law 

On appeal, the Court of Appeal reversed the motion judge's summary dismissal, and restored the action to the trial list. The Court held that the motion judge had been “misled by McHardy”, which had been wrongly decided because the Divisional Court in that case had “inadvertently departed” from the prior appellate authority. 

In Bello, Court of Appeal confirms that municipal intention is not determinative of the applicability of the section 44(8) liability exclusion: even if a municipality does not intend a particular portion of a road to be used for travel, it is not immunized from liability if that area is, in fact, “commonly and habitually used by the public for the purpose of travel.”

In making its determination, the Court of Appeal reaffirmed the two-part test articulated in its earlier decision of MacDonald v. Lefebvre, [1962] O.R. 495 (C.A.). The “untravelled portion of a highway” immunity will not apply if: 

1. the municipality intended that the portion of the highway in question be used for ordinary and normal travel; or
2. the public commonly and habitually used that portion for ordinary and normal travel.

“Any question about the reasonableness of the use might assist in resolving the question of what the municipality intended, and would be relevant in the subsequent analysis of whether municipality was negligent. It does not answer the legal and factual question of whether that part of the highway was commonly and habitually used for travel, and therefore not part of the untravelled portion.”  [Emphasis original]

Rather than remit the matter for determination under the correct legal test, the Court of Appeal concluded on the existing record that the location of the plaintiff’s accident was commonly and habitually used by pedestrians and cyclists for travel. As a result, the claim was not barred by section 44(8). The Court of Appeal accordingly restored the plaintiff’s action to the trial list to allow for an assessment of the municipality’s liability for negligence under the balance of section 44 of the Municipal Act, 2001.