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.
The case law reviewed in Bello sets out the difference between the travelled and untravelled portions of the road and the purpose behind the provision. The reason for the enactment of this type of provision was to protect municipalities against liability from accidents caused by drivers who "for their own convenience, pursue an unusual course, and one that invites danger".1 The provision is best seen as statutory encouragement for users of public roads to stick to the portions of the road intended for travel.
The purpose is an important limiter as, for example, this provision did not protect a municipality against liability when a utility pole adjacent to a road, snapped and fell, causing damage to a plaintiff's vehicle.2 The provision only protected against liability from drivers who go where they were not expected to go; it did not protect a municipality for failing to properly secure or maintain the utility pole.
In defining the scope of the protection, the authorities define where a municipality maybe liable. They largely agree that a municipality may be liable for the portions of a road intended by the municipality for ordinary use by traffic or commonly used by the public for that purpose. This includes both (a) the intended travel lanes; or (b) any portion of a road commonly and habitually used by the public for travel.
The application of this provision is varied and knowing exactly where immunity starts and stops may notbe easy to discern. For example, the shoulder of a highway was found to not be within "the travelled portion of such highway" and the immunity provision was therefore operative in MacDonald v Lefebvre et al, 1962 CanLII 111 (ON CA), [1962] OR 495 (CA). However, the shoulder of the road was found to be more akin to a sidewalk in Bellefleur v. London (City of), 2002 CanLII 20770, and therefore the municipality was unable to rely on this statutory immunity.
There are a variety of objects encountered by pedestrians, bicyclists, and drivers every day on Saskatchewan roads and knowing exactly where the travelled portion of the road ends and the untravelled portion starts isn't always clear. This poses difficulties for Saskatchewan cities and municipalities when assessing risk but the Bello decision helpfully offers some ideas of where the statutory immunity may start and stop.
Footnotes
1. Jacob v. Tilbury (Municipality) (1940), 1910 CanLII 163 (ON CA), [1941] 1 D.L.R. 456 (Ont. C.A.)
2. Ouellette v Hearst (Corp of the Town) (2004), 70 OR (3d) 204, 2004 CanLII 36122 (ON CA), leave to appeal to SCC dismissed, 30353 (18 November 2004).
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