A recent decision from Ontario’s highest court has yielded an unusual result regarding Ontario’s ever-evolving summary judgment regime.
Typically, motions for partial summary judgment are difficult to advance and, in many cases, do not proceed to scheduling given their low likelihood of success. However, Kotsopoulos v. Toronto (City), 2026 ONCA 121 (“Kotsopoulos”) raised an unusual procedural question: what happens when a motion that ought not to have been scheduled nevertheless proceeds to be heard?
In Kotsopoulos, the action arose from an incident in which a plaintiff fractured her ankle after stepping into a hole located within a ditch in a municipal road allowance in Toronto. The plaintiff commenced an action against the City of Toronto (the “City”), alleging negligence in the maintenance of the area.
In response, the City relied on the statutory protection set out in s. 42(4)(b) of the City of Toronto Act, 2006, SO 2006, c 11, Sch A, which limits municipal liability for injuries occurring in the “untravelled portion of a highway.” The City brought a motion for partial summary judgment seeking dismissal of the action on the basis that the plaintiff’s injury occurred within such an area.
The motion judge was therefore asked to determine whether the statutory bar applied and whether the claim could appropriately be resolved through summary judgment. Because the motion would resolve only part of the broader action, the motion required consideration of the principles governing partial summary judgment established by the Ontario Court of Appeal (the “ONCA”).
In assessing the motion, the motion judge correctly recognized that the proposed adjudication constituted partial summary judgment. The motion judge accordingly applied the governing framework, which requires courts to consider whether determining only part of a case would advance the objectives of proportionality, efficiency, and fairness, without creating a risk of inconsistent findings or procedural fragmentation.
Applying that framework, the motion judge concluded that the case was not suitable for partial summary judgment. In particular, the motion judge determined that resolving the statutory issue in isolation would not meaningfully advance the litigation and could result in unnecessary duplication of judicial resources. The motion judge observed further that, in the circumstances, the motion should not have been scheduled in the first place.
Despite reaching that conclusion, however, the motion judge proceeded to hear and determine the motion on its merits. The motion judge reasoned that the motion had already been scheduled and that the parties had incurred the time and expense associated with preparing for the hearing. On that basis, the motion judge elected to decide and grant the motion, rather than dismiss it as procedurally inappropriate.
The ONCA allowed the appeal and set aside the motion judge’s order. It held that once the motion judge determined that the criteria for partial summary judgment had not been satisfied, the motion should have gone no further. The fact that the motion had already been scheduled, or that the parties had incurred significant preparation costs, did not justify proceeding with the adjudication.
The decision emphasizes that partial summary judgment raises distinct procedural concerns because it involves determining only part of a case while leaving other issues to be resolved at a later stage. For that reason, courts must remain attentive to the risk associated with fragmented litigation, including inconsistent factual findings, duplicative proceedings, and inefficiencies arising from piecemeal adjudication.
In light of these concerns, the ONCA concluded that the motion judge erred by proceeding to determine the motion after finding that the governing framework for partial summary judgment had not been met. The court accordingly set aside the order and declined to address the underlying statutory issue.
The ONCA’s reasoning reinforces an important principle in Ontario civil procedure: partial summary judgment remains exceptional. Although the Supreme Court of Canada has encouraged broader use of summary judgment as a mechanism to improve access to justice, subsequent ONCA jurisprudence has repeatedly cautioned that partial summary judgment presents unique procedural risks.
Unlike a motion that disposes of an action in its entirety, partial summary judgment can fragment the litigation process. Determining discrete issues in advance of trial may create the possibility of inconsistent factual findings, require multiple hearings before different decision-makers, or distort the evidentiary context in which remaining issues are assessed.
The ONCA has therefore consistently emphasized that partial summary judgment should be approached with caution. Courts must consider not only whether a discrete issue can technically be decided in isolation, but also whether doing so will promote the efficient, proportionate, and fair resolution of the proceeding.
Kotsopoulos reinforces that these concerns are not merely advisory. When a motion judge determines that the criteria for partial summary judgment have not been satisfied, the appropriate course is to decline to adjudicate the issue. Procedural convenience alone cannot justify departing from that framework.
For litigators, the decision provides several practical reminders regarding the use of partial summary judgment.
- Parties considering such motions should carefully assess whether the proposed adjudication satisfies the applicable criteria. The fact that a legal issue can be framed as a discrete question does not necessarily mean that resolving it separately will meaningfully advance the litigation.
- The scheduling of a motion does not guarantee that the motion will proceed. Even where a hearing date has been secured and the parties have prepared extensive materials, the motion judge retains an independent obligation to determine whether the motion is procedurally appropriate.
- Finally, parties opposing partial summary judgment should raise any concerns regarding procedural fragmentation at an early stage. Courts remain attentive to the systemic risks associated with piecemeal adjudication, and those concerns may influence both the disposition of the motion and any resulting costs consequences.
Ultimately, the significance of Kotsopoulos lies not in the law of municipal liability, but in its procedural message. Partial summary judgment remains a limited and exceptional procedural tool. When the governing framework indicates that a matter should proceed to trial intact, courts must resist the temptation to determine issues merely because a motion has already been scheduled.
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About the Authors:
Daniel Waldman is Of Counsel in the firm’s Toronto office. He has a broad commercial litigation practice with an emphasis on real property litigation, including commercial leasing, commercial real estate, construction law, and debt collection. Daniel can be reached at 416-644-2838 or dwaldman@dickinsonwright.com. To read his full bio, please click here.
Ciara Halloran
is an articling student in Dickinson Wright’s Toronto office. She works with the firm’s corporate, intellectual property, and entertainment, sports, and media teams, supporting clients across a range of emerging and established industries. She can be reached at CHalloran@dickinsonwright.com.