The Partial Summary Judgment Conundrum: The Shrinking Utility of Partial Summary Judgment Motions
In Kotsopoulos v. Toronto (City), 2026 ONCA 121, the Ontario Court of Appeal provides further insight on the limited availability of partial summary judgement motions. The Court also highlights the obligations of parties opposing partial summary judgment to raise issues with partial summary judgment at the earliest stage possible.
Factual Background:
Ms. Kotsopoulos was injured on October 17, 2020, while walking her dog along a residential street. The street had a two-lane road with no sidewalks. To avoid two passing vehicles, Ms. Kotsopoulos moved off the paved roadway and stepped into a hole at the bottom of a ditch, which ran beside a grassy shoulder along the road. Ms. Kotsopoulos suffered a fractured ankle. The plaintiff sued the City of Toronto (the “City”), the private land owner, and other parties not relevant to the appeal.
The City’s defence position was that the location of where the plaintiff was injured was in an “untraveled portion of a highway”. As such, the City commenced a partial summary judgment motion seeking dismissal of the claim against it, relying on s. 42(4)b of the City of Toronto Act, 2006, which holds the City not liable for injuries sustained on the “untraveled portion of a highway”. The motion judge granted the City’s motion and dismissed the plaintiff’s claim against the City, and the action would proceed against the other defendants.
The Plaintiff appealed the decision, arguing that the motion judge erred in granting partial summary judgment and that they erred in their analysis of whether the ditch was an untraveled portion of the roadway.
Analysis:
The Court of Appeal focused on the motion judge’s analysis of whether it was appropriate to grant partial summary judgment by highlighting one portion of the motion judge’s decision:
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.
The court of appeal agreed that the City’s motion was not an appropriate case for partial summary judgment based on the motion judge’s consideration of the Malik factors. However, the motion judge erred when he continued to hear and decide the motion despite his consideration of the Malik factors.
For reference, the Malik factors are as follows:[1]
When faced with a request for a motion for partial summary judgment, a motion judge should make three simple requests of counsel or the parties:
- Demonstrate that dividing the determination for this case into several parts will prove cheaper for the parties;
- Show how partial summary judgment will get the parties case in and out of the court system more quickly;
- Establish how partial summary judgment will not result in inconsistent finding by the multiple judge who will touch the divided case.
In its decision, the Court of Appeal noted the important role that judges presiding in scheduling courts have in screening cases that do not appear appropriate for partial summary judgment.[2] However, once a motion for partial summary judgment is scheduled, it remains the obligation of the motion judge hearing the motion to assess whether summary judgment is appropriate in accordance with cases such as Malik. This is due to the fact that the motion judge will have the full motion record available to them and are in a much preferable position to assess whether a summary judgment motion is appropriate compared to a judge in scheduling court.
However, the Court of Appeal indicated that all parties have a responsibility to raise concerns about partial summary judgement at the earliest opportunity. This includes raising the issue at motion scheduling court. The Court of Appeal noted that failure to do so may be taken into consideration by the motion judge when assessing costs.
Disposition of the Court
The Court of Appeal allowed the appeal and set aside the City’s partial summary judgment motion based on the motion judge’s failure to adhere to the Malik factors. As such, the court did not go on to address whether the fall location was within an untraveled part of the highway.
Considerations
This decision further supports the trend of limiting the availability of partial summary judgment. The Court in Kotsopoulos agreed that, despite the potential early release of the City based on its statutory defence, the release of one defendant would not be enough to satisfy the Malik factors and justify a partial summary judgment.
With that said, it is unclear why the removal of a party from the litigation would not result in some cost savings or a quicker disposition of the action for the plaintiffs. It would arguably shorten the length, and therefore the cost, of trial and remove a major player from the action, allowing the plaintiff to focus their litigation efforts on any remaining target defendants. Nevertheless, the availability and utility of partial summary judgment continues to shrink.
It also appears that counsel will need to play an active role in the consideration and opposition of partial summary judgment motions. The Court of Appeal’s comments in Kotsopoulos suggests that there may be costs repercussions if those in opposition of partial summary judgment do not object the scheduling of the motion at an early stage.
[1] Malik v Attia, 2020 ONCA 787 at para 62.
[2] The motion scheduling courts includes Toronto’s Civil Practice Court but applies to other jurisdictions where judges are involved with scheduling courts.