The Ontario Court of Appeal has overturned a Hamilton Superior Court decision that dismissed a $22-million negligence lawsuit against the City of Hamilton filed by Otto Bello, a cyclist injured on August 4, 2019.
Otto Bello was the second cyclist in a group riding along Stone Church Road East after leaving the Red Hill Valley trail en route to the Chippewa Trail. They were using a paved route which came to an end. They chose to use a worn dirt path beside the roadway, instead of the roadway shoulder that the City had marked as a bike lane.
Writing for an unanimous Court of Appeal panel, Justice Bradley Miller described the lane as “essentially, the paved shoulder of the road.”
Justice Miller summarizes the events leading to the accident as follows: “The dirt path crossed a culvert that passed underneath both Stone Church Road and the dirt path. Unfortunately, neither the lead cyclist nor Mr. Bello, who was riding second, saw until the last seconds that the ground around the culvert had been badly eroded, creating a large hole. Although the grass around the culvert had been mowed 12 days earlier, by the time of the accident the hole was hidden by tall grass. The lead cyclist saw the hole at the last moment and successfully swerved to the right to avoid it. Mr. Bello, right behind him, swerved to the left and fell. Mr. Bello broke his neck and suffered complete tetraplegia. He must now use a wheelchair and will need care for the rest of his life.”
Bello filed his lawsuit. The City responded by filing a motion for summary judgment, arguing the cyclists were using an ‘untravelled portion’ of the highway.
Municipalities cannot be sued ‘where the cause of damage is located within the untravelled portion of the highway.’
In the 2024 trial court decision, the judge determined that because the City had marked the paved shoulder for bicycle use, the City was not responsible for people using the dirt path.
However, the legal test in this case was to determine if the public was “commonly and habitually” using the off-road path. The Court of Appeal ruled the trial judge failed to “resolve whether the place the accident occurred was nevertheless commonly and habitually used by the public for travel.”
The Court of Appeal, looking at photos of the clear dirt path, determined the City could not dismiss the claim because the public was clearly commonly and habitually using the pathway.
The appeal decision restores the lawsuit to the trial list. The City of Hamilton will now defend against the action. The questions of negligence and/or failure by the municipality will have to be resolved at trial.
Related: Lawyers at Borden Ladner Gervais LLP have conducted a legal analysis of the decision. It can be read on CanLII.
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Published: November 28, 2025
Last updated: November 28, 2025
Author: Joey Coleman
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