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Roadway Includes Sidewalk: Involves the Interpretation of Sidewalk As Within Roadway Infrastructure
Question: Does the definition of "roadway" include sidewalks in Ontario?
Answer: Yes, under the Municipal Act, 2001, [S.O. 2001, c. 25], "roadway" encompasses not only the main driving area but also sidewalks, boulevards, and ditches. Understanding this broad interpretation can assist municipalities in managing responsibilities and minimising liabilities, providing valuable insight for effective governance.
Understanding That the Definition of Roadway Includes Sidewalk
When interpreting the term "roadway", it is crucial to consider the provisions of the Municipal Act, 2001, S.O. 2001, Chapter 25, as well as the pertinent case law. Upon review of the case law, it is found that courts have defined "roadway" as including a sidewalk, a boulevard, a ditch, and other portions of the roadway infrastructure despite being unintended for the travel of automobiles. This interpretation was stated within R. v. Nazark, 2024 ONCJ 76, and Cena v. Corporation of the Town of Oakville, 2009 CanLII 1650, wherein each case it was respectively said:
Definition of sidewalk – is it part of the highway?
29. The Act does not define the term sidewalk. The Act does, however, define the boundaries of a highway at section 1(1): “highway” includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof;” (emphasis added).
30. In my view, this wording supports a conclusion that the sidewalk is part of the highway. Firstly, the phrase “or used by the general public for the passage of vehicles” suggests that the sidewalk is included. Many people – adults and children alike – use the sidewalk when riding bicycles [which are defined at section 1(1) of the Act as a vehicle]. This is true, whether the activity is prohibited by municipal by-law or not. Second, sidewalks are generally municipal property and are therefore situated within the lateral property lines of the highway. Sidewalks are clearly distinguished from the roadway, which is the portion of the highway used primarily by motor vehicles.
31. For example, courts have found that the definition of “highway” in the Municipal Act, 2001, S.O. 2001, c. 25 includes both the boulevard and the sidewalk. (see York (Regional Municipality) v DiBlasi, [2014] OJ No 2546; R v Wassilyn, [2006] OJ No 2900; and McQueen v. Niagara-on-the-Lake (Town) [1987], 9 A.C.W.S. (3d) 45)). In DiBlasi at para. 93 the Court found, “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 bysection 44(8) of the Municipal Act, 2001 that recognizes that some parts of a "highway" are untraveled.”
[10] It is long established that municipal sidewalks are considered to be part of a highway. See McQueen v. Niagara-on-the-Lake (Town) [1987] O.J. No. 2416 and the cases referred to therein.
Conclusion
Interpreting the term "highway" under the Municipal Act, 2001, with reference to case law decisions, elucidates that it includes boulevards, sidewalks, and ditches. This comprehensive understanding is vital for municipalities in fulfilling their duties and managing liabilities effectively. Strategic insights derived from legal precedents can offer valuable guidance in related areas, reinforcing the importance of informed decision-making.