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Roadway Includes Ditches: Untraveled Portions of Road Allowances
Question: What does the inclusion of ditches in the definition of "roadway" mean for municipalities?
Answer: Recognising that ditches are part of the roadway under the Municipal Act, 2001, [S.O. 2001, c. 25] provides clarity for municipalities regarding their maintenance responsibilities, helping to mitigate potential litigation and ensure public safety. For tailored assistance with roadway legal matters, contact us for a consultation today.
Understanding That the Definition of Roadway Includes Ditches
The definition stated within the Municipal Act, 2001, S.O. 2001, Chapter 25, is somewhat vague whereas such states that a "highway" includes the untraveled portions of the road allowance without any specific reference to ditches, among other things; however, as per interpretative case law, including the case of Regional Municipality of York v. DiBlasi, 2014 ONSC 3259, ditches are confirmed as an element of a road allowance and therefore as a part of the roadway. Understanding the extent of the components that comprise roadways, such as ditches, is a crucial concern when litigation allegations of failure to maintain a roadway is brought against a municipality. In regards to ditches as a component of the roadway, the court in the Diblasi case stated:
[89] The Municipal Act, 2001 recognizes at section 44(8) that parts of a highway can be “untravelled”:
(8) No action shall be brought against a municipality for damages caused by,
(a) the presence, absence or insufficiency of any wall, fence, rail or barrier along or on any highway; or
(b) any construction, obstruction or erection, or any siting or arrangement of any earth, rock, tree or other material or object adjacent to or on any untravelled portion of a highway, whether or not an obstruction is created due to the construction, siting or arrangement. [Emphasis added.]
[90] In the case of Stager v. Muskoka Lakes (Township), 1989 CanLII 4176 (ON SC), 71 O.R. (2d) 126, the court notes “[I]n my view the road includes not only the travelled portion but also the ditches and verges and the full extent of the road allowance”. However, this case interprets the 1980 version of the Municipal Act, R.S.O. 1980, c. 302. The case was affirmed at the High Court of Justice, Divisional Court, (1989), 71 O.R. (2d) 126. The definition of “road” adopted in Stager was also mentioned in Saiviarkand Investments Ltd. v. Toronto (City), [2009] O.J. No. 6424, at para. 16.
[91] In R. v. Wassilyn, 2006 ONCJ 248, the central issue was whether the definition of “street” in the Toronto Municipal Code, Chapter 743, includes a sidewalk. The Toronto Municipal Code defines “street” as a “highway” as defined in section 1(1) of the Municipal Act, 2001. The court ruled that the definition of “highway” included the sidewalk. At paras. 8-11, the decision was based on a close interpretation of the Municipal Act, 2001, itself and jurisprudence:
8 Section 55(1) of the act provides: An upper-tier municipality is not responsible for the construction and maintenance of sidewalks on its highways and the lower-tier municipality in which the highways are located is responsible for the construction and maintenance of the sidewalks and has jurisdiction over that part of the highway, unless the municipalities agree otherwise. (emphasis added).
9 Similar references to sidewalks forming a part or parts of highways are also found in sections 42, 60, and 297 of the Municipal Act, R.S.O. 1990 c. M.45.
10 The civil jurisprudence while not directly applicable, in my opinion, supports the respondent's position that the sidewalk forms part of the highway. In Green et al. v. Dixon Road Car Wash Ltd et al., (1981), 1981 CanLII 1941 (ON SC), 124 D.L.R. (3d) 503 Justice Craig noted at p. 505:
• If "highway" in s. 427(1) does not include "sidewalk" then, aside from cases where snow and ice are involved (s. 427(4)), actions against municipalities for damages with reference to sidewalks would be confined to a common law right of action based on misfeasance; the statutory liability for non-repair would not arise. In my opinion that is clearly not the case; "sidewalk" must be considered as part of a highway as defined in the Municipal Act, s. 1, para. 10, and referred to in s. 427(1). For years the cases have all proceeded on that basis and assumption. To mention a few: Gilmour v. City of Toronto (1926), 30 O.W.N. 319 at p. 320; McCracken v. Hamilton, [1959] O.W.N. 128; affirmed [1960] O.W.N. 74.
11 In the case of 122-124 Avenue Road Holdings Inc. v. Toronto (City) (1992), 1991 CanLII 7146 (ON SC), 6 O.R. (3d) 661 Cavarzan J. noted at p. 663:
• It is undisputed that "highway" in the Municipal Act includes all of the highway, that is to say, the roadway, the sidewalks, and the boulevards.
[92] In McQueen v. Niagara-on-the-Lake (Town) (1987), 9 A.C.W.S. (3d) 45, [1987] O.J. No. 2416, at para. 13 the court ruled that a boulevard, which is between a sidewalk and a roadway was part of the “highway”. However, this case interpreted a previous 1980 version of the Act at section 257.
[93] If the reasoning of Wassilyn and McQueen is applied to the issue at hand, then a “highway” under the Act includes a sidewalk and a boulevard, and must also include the ditch within its parameters. This conclusion is bolstered by section 44(8) of the Municipal Act, 2001 that recognizes that some parts of a “highway” are untraveled.
Conclusion
The interpretations and applications of the Municipal Act, 2001, regarding roadways, including ditches, play a vital role in municipal governance and infrastructure maintenance. Key judicial decisions provide clarity on these definitions, assisting municipalities and litigants with an appreciation of the respective regulatory responsibilities faced by municipalities.