The appellants sued the City of Toronto after one of them fractured her ankle stepping into a hole in a ditch within the municipal road allowance on a road with no sidewalks.
The City obtained partial summary judgment on the basis of the statutory bar in s. 42(4)(b) of the City of Toronto Act, 2006, pertaining to untraveled portions of a highway.
The Court of Appeal allowed the appeal, finding that the motion judge erred by proceeding to decide the partial summary judgment motion despite his own conclusion, applying the Malik v. Attia factors, that the case was not appropriate for partial summary judgment.
The court held that once the motion judge found the Malik factors weighed against partial summary judgment, he ought to have dismissed the motion.
The cross-appeal was dismissed as moot.
