A recent Ontario Court of Appeal decision clarifies municipal liability and partial summary judgment standards in ditch injury cases.
In Kotsopoulos v. Toronto (City), 2026 ONCA 121, the appellant injured her ankle in a ditch within the municipal road allowance while walking her dog along Rouge Highlands Drive on Oct. 17, 2020. With no sidewalk present, she stepped onto the unpaved roadway to avoid two oncoming vehicles, and her foot dropped into a hole below the ditch bottom beside the grassy shoulder. She sued both the City and the adjacent property owner, claiming the injury occurred near a private driveway; the owner crossclaimed against the City for contribution and indemnity.
City’s Failed Defence Motion
The City invoked s. 42(4)(b) of the City of Toronto Act, 2006 to argue no liability for the “untraveled portion of a highway.” On Feb. 28, 2025, Justice Grant Dow granted partial summary judgment dismissing the claim against the City. The appellant appealed this ruling and the ditch analysis; the City cross-appealed to dismiss the crossclaim.
Key Appeal Ruling
The Court of Appeal set aside the judgment, dismissed the City’s motion, deemed the cross-appeal moot, and awarded $15,000 costs to the appellant. Noting s. 42(4)(b)’s similarity to s. 44(8)(b) of the Municipal Act, 2001 (as in Bello v. Hamilton (City), 2025 ONCA 758), it focused on summary judgment procedure.
The court agreed Malik v. Atia, 2020 ONCA 787 factors weighed against partial summary judgment but held the motion judge erred by granting it despite scheduling and his own unsuitability finding. The Civil Practice Court judge could only flag the motion type, not conduct full analysis—the motion judge needed the complete record for that. No need arose to address the statutory bar.
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Cases like Kotsopoulos guide municipalities, insurers, and defence counsel on immunity, maintenance duties, and summary processes. Flaherty McCarthy LLP’s experienced team tracks these developments to deliver strategic advice and robust defence strategies for clients facing similar claims across Ontario. Contact us to discuss how we can assist with your risk management and litigation needs.
