The Court of Appeal’s decision in Kotsopoulos appears, at first glance, to be a routine municipal liability appeal. It is not. It is a procedural recalibration. The judgment reinforces that partial summary judgment is not merely a tactical device. It is an exception to the structural integrity of the trial process and courts must guard that integrity carefully.
The Procedural Posture
The plaintiff fractured her ankle after stepping into a hole within a ditch located in a municipal road allowance. The city relied on the statutory bar in s. 42(4)(b) of the City of Toronto Act, 2006, arguing the injury occurred in the “untraveled portion of a highway.” The city moved for summary judgment. The motion judge concluded that, applying the framework from Malik v. Attia, 2020 ONCA 787, the case was not appropriate for partial summary judgment. However, the judge then proceeded to decide the motion because it had already been scheduled. The statutory bar issue was left undecided.
The Jurisprudential Context
Partial summary judgment has always occupied an uneasy position in Ontario civil procedure. Following Hryniak v. Mauldin, 2014 SCC 7 (CanLII), summary judgment expanded in scope. Yet the Court of Appeal has repeatedly cautioned that partial adjudication poses unique risks, as articulated in Malik v. Attia and Butera v. Chown, Cairns LLP, 2017 ONCA 783. The concern is structural in that fragmentation may generate inconsistent findings, duplicative proceedings and unfairness to remaining parties. Kotsopoulos reinforces that these concerns are not advisory. They are binding guardrails.
The Central Error
The motion judge correctly applied Malik and determined the case failed the test. That conclusion should have ended the inquiry. Instead, the motion was heard because the date had been secured, and the parties had incurred preparation costs. The Court of Appeal rejected that rationale on the basis that procedural momentum does not override doctrinal discipline. The court effectively held that once a motion judge finds partial summary judgment inappropriate, proceeding further is reversible error.
Institutional Significance – Reaffirmation of Judicial Gatekeeping
The court emphasizes that scheduling by Civil Practice Court does not absolve the motion judge of independent responsibility. The motions judge, with the full evidentiary record, must assess:
- System-wide efficiency
- Risk of inconsistent findings
- Fairness to non-moving parties
This restores a two-tier safeguard screening at scheduling and substantive gatekeeping at adjudication.
Protection of Trial Coherence
Partial summary judgment can distort the evidentiary landscape at trial. In multi-defendant litigation, removing one party may shift narrative framing, alter allocation of fault and influence credibility assessments. The court implicitly affirmed that trial coherence is a systemic value deserving protection.
A Subtle Costs Warning
The court observes that parties opposing partial summary judgment should raise concerns early and failure to do so may influence costs. This reinforces shared responsibility in preserving procedural integrity.
What the Court Did Not Decide
The court declined to address the statutory interpretation of s. 42(4)(b). That restraint is noteworthy. Rather than opine unnecessarily, the court confined itself to the procedural error. This reflects appellate discipline and respect for incremental development of doctrine.
Broader Doctrinal Implications
Kotsopoulos signals a recalibration of summary judgment culture. Three themes emerge:
- Efficiency is measured systemically, not individually
- Partial adjudication remains exceptional
- Procedural discipline supersedes convenience
This case will likely be cited not for municipal law, but for civil procedure boundaries.
The deeper message of Kotsopoulos is institutional humility. The message is clear that courts must resist the gravitational pull of expediency. The integrity of adjudication depends not only on speed, but on structural coherence. In reaffirming this principle, the Court reasserts that summary judgment is a tool of justice — not a substitute for it.
Kotsopoulos is a quiet but important decision. It reminds litigators and judges alike that partial summary judgment is not justified merely because it is efficient for one party, nor because a motion date has been obtained. Once the Malik framework disqualifies the motion, the matter must proceed to trial intact. That is the doctrinal reset.
