Case information

Municipal law – Highways – Obligation of municipalities to maintain highways – Motion for summary judgment – When are municipalities exempt from liability for damages occurring on an untravelled portion of a public highway – What standard of review applies to a judges’ determination that the place of an incident is on an untravelled portion of a highway – Municipal Act, 2001, S.O. 2001, c. 25, s. 44(8).

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The respondent was part of a group of ten cyclists who were cycling on mixed-use recreational trails. When they came to the end of the paved path, the group of cyclists chose the dirt path to keep themselves apart from motor vehicle traffic, to which they would have been exposed if they had used the portion of the highway marked as a bike lane. The dirt path crossed a culvert. The ground around the culvert had eroded, creating a hidden hole obscured by tall grass. The respondent fell into the hole. The respondent broke his neck and suffered complete tetraplegia. The respondent brought an action for damages against the applicant alleging negligence and, in the alternative, public nuisance for failure to maintain the road. The applicant brought a summary judgment motion seeking to have the action dismissed under s. 44(8) of the Municipal Act, 2001, S.O. 2001, c. 25. The motion judge found that s. 44(8) of the Municipal Act, 2001 barred the claim on the basis that the accident occurred on an “untravelled portion” of the highway. The motion judge allowed the motion for summary judgment and dismissed the action. The Court of Appeal allowed the appeal and ordered that the action be restored to the trial list.