Appeal court set aside partial summary judgment in city’s favour
After allowing an appeal in an ankle injury case and setting aside partial summary judgment originally issued in Toronto’s favour, the Ontario Court of Appeal awarded the appellants $51,600 in costs of the summary judgment motion, including disbursements and taxes.
A woman alleged that she sustained an ankle injury when her foot went into a ditch while she was walking along Rouge Highlands Drive on Oct. 17, 2020.
The injured appellant sued the city on the basis that the ditch fell within the municipal road allowance. She also sued a private property owner on the grounds that the injury happened in a place bordering a private driveway.
The property owner cross-claimed against Toronto for contribution and indemnity. In its defence, the city said it was not liable for the injury because the incident occurred in an “untraveled portion of a highway,” subject to the statutory bar in s. 42(4)(b) of the City of Toronto Act, 2006.
Pursuant to the statutory bar, Toronto moved for the summary dismissal of the claim against it. On Feb. 28, 2025, Justice Grant Dow of the Ontario Superior Court of Justice summarily dismissed the claim against the city.
On appeal, the appellants contended that the motion judge erred in granting partial summary judgment in Toronto’s favour and in assessing whether the ditch was an untraveled portion of the roadway.
On cross-appeal, the city asserted that the motion judge should have likewise dismissed the property owner’s crossclaim.
Last Feb. 19, in Kotsopoulos v. Toronto (City), 2026 ONCA 121, the Ontario Court of Appeal set aside the partial summary judgment in the city’s favour, denied its summary judgment motion, and dismissed the cross-appeal as moot.
The appeal court awarded the appellants $15,000 in appeal costs, including disbursements and taxes. The appeal court then addressed the costs of the summary judgment motion. The respondent conceded that the appellants were entitled to such costs.
Based on their two settlement offers before the motion hearing, the appellants sought substantial indemnity costs of $96,158.17. Alternatively, they wanted partial indemnity costs of $66,575.44.
In either case, the appellants sought disbursements of $7,410, including harmonized sales tax (HST), plus post-judgment interest at a five-percent rate from Feb. 28, 2025, the motion judge’s decision date.
On the other hand, the respondent asked the appeal court to order partial indemnity costs. Regarding the scale of costs, the respondent alleged that:
Regarding the quantum of costs, the respondent asked the appeal court to fix costs at $40,000, including disbursements and HST, plus $2,000 in post-judgment interest for the approximately one-year period since the decision on the motion.
The respondent submitted that the appellants sought excessive fees because their counsel spent over double the time spent by the city’s counsel on the motion. The respondent also challenged two specific disbursements.
On Mar. 19, in Kotsopoulos v. Toronto (City), 2026 ONCA 206, the Court of Appeal for Ontario ordered the respondent to pay the appellants the motion costs of $51,600, including disbursements and HST, plus post-judgment interest on the costs award from Feb. 28, 2025, at five percent per annum.
Regarding the scale of costs, the appeal court declined to exercise its discretion to award substantial indemnity costs in the circumstances.
The appeal court ruled that the appellants’ two settlement offers did not meet the criteria for the cost consequences in r. 49.10(1), as both offers had expired before the motion hearing had begun.
The appeal court then tackled the quantum of costs. On a partial indemnity basis, the appeal court reduced the fees portion of the appellants’ claimed costs to $40,000, plus HST, based on the following factors.
First, the appeal court discussed the time the appellants’ counsel spent on the motion. The appeal court acknowledged that two associate lawyers did most of the work, which was a reasonable way to mitigate expenses. However, the appeal court held that the associates spent excessive time on the motion in the circumstances.
Next, the appeal court considered the appellants’ failure to raise the issue of whether partial summary judgment was appropriate during the scheduling of the motion. The appeal court explained that the appellants knew at that time that the motion sought partial summary judgment.
Finally, regarding disbursements, the appeal court found that the listing duplicated entries for cross-examination transcripts, leading to the double-counting of $1,001.80. The appeal court reduced the requested disbursements by that amount.
