Ontario Court of Appeal clarifies limits on partial summary judgment in municipal cases

In a recent case, the Court of Appeal for Ontario confirmed the limits of partial summary judgment in municipal liability cases, holding that such motions should not be heard where there remained a risk of producing inconsistent findings.

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In Kotsopoulos v. Toronto (City), 2026 ONCA 121, the Court of Appeal considered the circumstances under which partial summary judgment may be granted in municipal liability cases. The plaintiffs, Eva and John Kotsopoulos, commenced an action after Eva fractured her ankle while walking her dog along a roadway without sidewalks, when she stepped aside to avoid two passing vehicles and fell into a hole located near the bottom of a ditch beside the grassy shoulder. The ditch fell within the municipal road allowance and bordered a private driveway.

The plaintiffs sued the City of Toronto, the adjacent property owner, and other defendants. The City pleaded a complete statutory defence under s. 42(4)(b) of the City of Toronto Act, 2006, asserting that the accident occurred in the “untraveled portion of a highway,” which would bar liability. This provision mirrors s. 44(8)(b) of the Municipal Act, 2001. Relying on this defence, the City brought a motion for partial summary judgment seeking dismissal of the claim against it.

The motion judge, however, explicitly acknowledged significant restrictions on the use of partial summary judgment following the Court of Appeal’s guidance in Malik v. Attia, 2020 ONCA 787, and expressed that he would not have permitted such a motion had it come before him at scheduling. He reasoned that the only party who might benefit from the early adjudication was the City and that the motion carried a risk of producing inconsistent findings as between the City and the remaining defendants—most notably the adjacent homeowner. Nonetheless, because the motion was already scheduled and the parties had incurred the expense of preparation, he proceeded to hear the motion “reluctantly” and ultimately granted the City’s request.

On appeal, the plaintiffs argued that the judge erred in granting partial summary judgment, while the City cross‑appealed, asserting that the judge should also have dismissed the property owner’s crossclaim for contribution and indemnity. The Court of Appeal held that the motion judge properly recognized that the Malik factors weighed decisively against allowing partial summary judgment; however, having reached that conclusion, he was required to dismiss the motion rather than proceed with its merits.

The Court reaffirmed that judges presiding in Civil Practice Court perform a critical screening role but cannot conduct the full Malik analysis at scheduling, as the necessary evidentiary record is not before them. It is the motion judge—who does have the full record—who must independently determine whether partial summary judgment is appropriate, regardless of scheduling decisions already made. Once a judge determines that partial summary judgment is inappropriate, the motion must be dismissed outright, regardless of inconvenience or sunk costs.

The Court also explained that parties opposing partial summary judgment should object at the earliest opportunity, as delay in raising the issue may be relevant to costs. Ultimately, the Court allowed the plaintiffs’ appeal, set aside the summary judgment granted in favour of the City, dismissed the motion, and dismissed the City’s cross‑appeal as moot. The Court declined to address the merits of the statutory immunity defence because the appeal was resolved on procedural grounds.