In light of the decision in Combined Air Mechanical Services v. Flesch, counsel in municipal cases must re-assess their opportunities for summary judgment. In Combined Air, the Ontario Court of Appeal identified a new category of cases amenable to summary judgment: cases where the trial process is not required “in the interests of justice.” The central question after Combined Air is whether a “full appreciation”3 of the evidence and issues can be achieved on the record before the motions judge. This means that Rule 204 motions will turn largely on the volume of the evidentiary record and the number of factual issues to be decided. In sidewalk and road maintenance cases, the opportunities for summary judgment are almost exclusively with the defendant municipality. In particular, summary judgment may be achieved in the following municipal liability scenarios:
1. Injury caused by a defect outside the travelled portion5 of the highway;
2. The plaintiff’s failure to abide by the statutory ten-day notice6 period;
3. Pedestrian injury on a roadway that is safe for vehicles;
4. The absence of gross negligence7 in a sidewalk case; and
5. Fall caused by a low “trip ledge” on a sidewalk.
In these various circumstances, defence counsel may be able to satisfy the “full appreciation” test and successfully demonstrate that a trial is not required “in the interests of justice.”
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