Court of Appeal for Ontario

Date: 2026-02-19 Docket: COA-25-CV-0424

Sossin, Copeland and Madsen JJ.A.

Parties

BETWEEN

Eva Kotsopoulos and John Kotsopoulos Plaintiff (Appellants/ Respondents by way of cross-appeal)

and

The City of Toronto*, Alice Yoon Mun Mak, Maintenance Company X, John Doe, Naveed Munawar and Kausar Jehan Defendants (Respondent/ Appellant by way of cross-appeal*)

Counsel

Alex Wolfe and Amanda Enwright, for the appellants/respondents by way of cross-appeal

Stuart Zacharias and Nadia Marotta, for the respondent/appellant by way of cross-appeal

Heard: February 4, 2026

On appeal from the judgment of Justice Grant R. Dow of the Superior Court of Justice, dated February 28, 2025, with reasons reported at 2025 ONSC 1356.

Reasons for Decision

[1] On October 17, 2020, the appellant Eva Kotsopolous, was walking her dog along Rouge Highlands Drive. The road has one lane in each direction, but no sidewalks, in the location where Ms. Kotsopoulos was walking. Ms. Kotsopoulos alleges that, as two cars were passing on the road in opposite directions, she stepped to the side, onto the unpaved portion of the roadway, to avoid them. When she did so, she stepped into a hole below the bottom level of a ditch which ran beside the grassy shoulder along the road. Ms. Kotsopoulos fractured her ankle.

[2] The ditch where Ms. Kotsopoulos alleges she injured her ankle is within the municipal road allowance. The precise spot where she alleges the injury occurred borders a private driveway. Ms. Kotsopoulos sued the respondent City of Toronto, the private property owner, and others not relevant to this appeal.

[3] The City's statement of defence included a pleading that it was not liable for any injury sustained by Ms. Kotsopolous because the location of her injury was in the "untraveled portion of a highway", and thus, subject to the statutory bar in s. 42(4) (b) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A. Section 42(4) (b) is the parallel provision to s. 44(8) (b) of the Municipal Act, 2001, S.O. 2001, c. 25, recently considered by this court in Bello v. Hamilton (City), 2025 ONCA 758.

[4] The City brought a summary judgment motion seeking dismissal of the claim against it on the basis of the statutory bar.

[5] The motion judge granted the motion and dismissed the claim against the City.

[6] The appellants appeal, arguing that the motion judge erred in granting partial summary judgment and that he erred in his analysis of whether the ditch was an untraveled portion of the roadway. The City cross-appeals, arguing that, having granted summary judgment for the appellants' claim against it, the motion judge should also have dismissed the property owner's crossclaim against the City for contribution and indemnity.

Analysis

[7] We note that the motion judge delivered his reasons before this court's decision in Bello. However, we focus on the motion judge's analysis of whether it was appropriate to grant partial summary judgment. We conclude that the motion judge erred in granting partial summary judgment.

[8] The motion judge gave the following reasons on the issue of whether partial summary judgment was appropriate:

Given the direction by the Court of Appeal limiting partial summary judgment, I would not have permitted the motion to be scheduled had it appeared before me in Civil Practice Court. I would have applied the three part test under Malik v. Attia, 2020 ONCA 787 (at paragraph 62) to conclude the termination of this issue would possibly "prove cheaper" only to the City of Toronto. Similar, the only party that may get its case "in and out of the court system more quickly" is the City of Toronto. In order to ensure no risk of "inconsistent findings by the multiple judges who will touch this divided case" I would have urged the City to serve a formal Rule 49 Offer to Settle and make its submissions at trial.

However, having secured the date and having incurred the time and expense of preparation, I reluctantly heard this motion.

[9] We agree with the motion judge's conclusion, applying the factors in Malik v. Atia, 2020 ONCA 787, at para. 62, that this case was not appropriate for partial summary judgment, for the reasons he outlined. However, having reached that conclusion, the motion judge ought to have dismissed the motion for partial summary judgment. In the face of finding that the Malik factors weighed against granting partial summary judgment, the motion judge erred in deciding the motion because it had been scheduled.

[10] We acknowledge that the judge presiding in Civil Practice Court when the motion was scheduled adverted to the fact that the motion was for partial summary judgment, "in the sense that the action would continue against the other defendants". However, the Civil Practice Court judge did not do a full Malik analysis. Nor could he have. 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.

[11] Judges presiding in Civil Practice Court [^1] play an important screening role in identifying cases that do not appear appropriate for partial summary judgment. This role requires them to take a hard look at motions seeking partial summary judgment at the time scheduling is proposed. But where a motion seeking partial summary judgment is scheduled, it remains the obligation of the motion judge to assess whether partial summary judgment is appropriate, considering the factors discussed in cases such as Malik, and Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at paras. 29-34. Because the motion judge, unlike the Civil Practice Court judge, will have the full record of the summary judgment motion, they are in a much preferable position to assess whether partial summary judgment is appropriate.

[12] We would add the following. Although it is ultimately the motion judge's responsibility to decide whether partial summary judgment is appropriate in each case, all parties have a responsibility to raise concerns in relation to partial summary judgment at the earliest opportunity. Where a party opposing a summary judgment motion on the basis that it is inappropriate for partial summary judgment fails to raise the issue at the time the motion is scheduled, it is open to a motion judge to consider that factor in assessing costs.

[13] We allow the appeal on the basis that the motion judge erred in not giving effect to his finding that the case was not appropriate for partial summary judgment. Because we decide the appeal on the basis that partial summary judgment was inappropriate, it is not necessary to consider the motion judge's conclusion on the application of the statutory bar, pursuant to s. 42(4)(b) of the City of Toronto Act. We express no opinion on that issue.

Disposition

[14] The appeal is allowed, the judgment set aside, and the summary judgment motion dismissed. The cross-appeal is dismissed as moot.

[15] The appellants are entitled to costs of the appeal in the agreed amount of $15,000, inclusive of disbursements and applicable taxes. If the parties are unable to agree on costs of the motion, they may file written submissions limited to three pages, plus a costs outline. The appellants' submissions shall be filed within 10 days of the release of these reasons. The respondent's submissions shall be filed within 10 days of the filing of the appellants' submissions.

"L. Sossin J.A."

"J. Copeland J.A."

"L. Madsen J.A."

[^1]: We refer to Civil Practice Court as this appeal is from a Toronto proceeding. The concerns we express are applicable in other jurisdictions where judges are involved in the scheduling of motions.