In Kotsopoulos v. Toronto (City), 2026 ONCA 121, the Ontario Court of Appeal allowed an appeal dismissing the summary judgment motion after finding one was not suitable in the circumstances.
The dispute in this matter arose after the plaintiff fractured her ankle after stepping onto the unpaved portion of the roadway to avoid two cars passing each other in opposite directions. The plaintiff alleged that she injured her ankle within the municipal road allowance. The City took the position that it was not responsible for any injury sustained because the location of the injury was subject to the statutory bar in s.42(4)(b) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A. and brought a motion for summary judgment to dismiss the claim against it on this very basis.
The motion judge granted the motion and dismissed the claim against the City.
Arguing that the motion judge erred in granting partial summary judgment in favour of the City, the appellants appealed.
Forming part of the motion judge’s reasons regarding the issue of whether partial summary judgment was appropriate, His Honour stated that he reluctantly heard the motion because it had already been scheduled. His Honour stated that had the matter appeared before him in Civil Practice Court, His Honour would not have permitted the motion to be scheduled. Further, His Honour stated that he would have applied the three-part test under Malik v. Attia, 2020 ONCA 787, to find that this case would not have been appropriate for partial summary judgment. The Civil Practice Court judge did not do a full Malik analysis, nor was it possible to since the evidentiary record for the summary judgment motion had not been filed at the time of the Civil Practice Court appearance when the motion was scheduled.
The Court of Appeal agreed with the motion judge’s conclusion that this case was not appropriate for partial summary judgment based on the application of the Malik factors. However, based on this analysis, the Court of Appeal found that the motion judge should have dismissed the motion for partial summary judgment and erred in deciding the motion because it had been scheduled.
The Court of Appeal allowed the appeal, set aside the judgment, and dismissed the summary judgment motion on the basis that the motion judge should have given effect to His Honour’s finding that the case was not appropriate for partial summary judgment.
The Court of Appeal added that the Civil Practice Court plays an important role in screening and identifying cases that do not appear appropriate for partial summary judgment, but that when a motion seeking partial summary judgment is scheduled, it remains the obligation of the motion judge to assess whether partial summary judgment is appropriate. The motion judge, unlike the Civil Practice Court judge, will have the full record of summary judgment motion which allows them to be in a much better position to assess whether partial summary judgment is appropriate or not.
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