Cities and municipalities are required to keep roads and streets in a reasonable state of repair by The Municipalities Act, SS 2005, c M-36.1 and The Cities Act, SS 2002, c C-11.1. However, these same entities are statutorily immune from liability for things on, in, or adjacent to streets that are not on the travelled portion of the road: see Municipalities Act, s. 345, Cities Act, s. 308.
When read literally, these provisions appear to give broad immunity to cities and municipalities from anything adjacent to, in, along or on a street that “is not on the travelled portion of the street or road”. However, like objects viewed in a rearview mirror, they may appear larger than they actually are.
A recent Ontario Superior Court decision in Bello v. City of Hamilton, 2024 ONSC 5457 reviews decisions interpreting this type of provision. Bello involved a cyclist who was catastrophically injured while using a dirt path adjacent to a road and dealt with the defendant city’s application for summary judgment. The application relied on s. 44(8) of the Municipal Act, 2001, SO 2001, c.25, which provided a similar immunity to Ontario municipalities against actions caused by things “on any untravelled portion of a highway”. The city’s summary judgment motion was granted in Bello based on this statutory immunity provision.