Roadway Includes Sidewalk:

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.”