Woman sued city and property owner after stepping into a hole in a ditch
In a case where a woman sued Toronto based on an ankle injury that occurred in a ditch falling within the municipal road allowance, the Ontario Court of Appeal allowed her appeal challenging a summary dismissal in the city’s favour.
In Kotsopoulos v. Toronto (City), 2026 ONCA 121, the appellant was walking her dog along Rouge Highlands Drive, in an area without a sidewalk, on Oct. 17, 2020.
According to the appellant, she stepped on the roadway’s unpaved portion to avoid two cars passing on the road in opposite directions. Her foot went into a hole below the bottom level of a ditch running beside the grassy shoulder along the road.
Apart from her claim against the city, the appellant also sued a private property owner on the grounds that her ankle injury occurred in a location bordering a private driveway. The property owner cross-claimed against the city for contribution and indemnity.
In its statement of defence, the city asserted that it was not liable for any injury to the appellant because the incident happened in an “untraveled portion of a highway,” subject to the statutory bar in s. 42(4)(b) of the City of Toronto Act, 2006.
Based on the statutory bar, the city moved for the summary dismissal of the claim against it. On Feb. 28, 2025, Justice Grant Dow of the Ontario Superior Court of Justice granted partial summary judgment in the city’s favour and dismissed the claim against it.
On appeal, the appellant alleged that the motion judge committed errors in granting partial summary judgment and in analyzing whether the ditch was an untraveled portion of the roadway.
On cross-appeal, the city argued that the motion judge should have also dismissed the property owner’s crossclaim.
The Court of Appeal for Ontario set aside the partial summary judgment, denied the city’s summary judgment motion, dismissed the cross-appeal as moot, and awarded the appellant $15,000, the agreed amount of appeal costs, including disbursements and taxes.
Section 42(4)(b) of the City of Toronto Act was a parallel provision to s. 44(8)(b) of Ontario’s Municipal Act, 2001, which the appeal court recently considered in Bello v. Hamilton (City), 2025 ONCA 758.
Though the motion judge delivered his reasons before Bello’s release, the appeal court focused on his analysis of whether it was appropriate to grant partial summary judgment.
The appeal court agreed with the motion judge’s finding that the factors in Malik v. Atia, 2020 ONCA 787, weighed against granting partial summary judgment. However, the appeal court ruled that he should have dismissed the partial summary judgment motion.
The appeal court explained that the motion judge erred in deciding the motion because it had been scheduled and in granting partial summary judgment, rather than giving effect to his finding that the case was inappropriate for partial summary judgment.
The appeal court noted that the Civil Practice Court judge acknowledged that the motion sought partial summary judgment. However, the appeal court found that the Civil Practice Court judge, who helped identify cases that appeared inappropriate for partial summary judgment, could not and did not perform a complete Malik analysis.
According to the appeal court, if a partial summary judgment motion was scheduled, the motion judge had the obligation to assess whether partial summary judgment was appropriate, considering the relevant factors and the full record of the summary judgment motion.
Lastly, given its reasons for allowing the appeal, the appeal court deemed it unnecessary to consider the motion judge’s conclusion on the application of the statutory bar under s. 42(4)(b).
