Executive Summary: Key Legal and Evidentiary Issues

• Summary judgment dismissed the appellant’s employment-related claim due to lack of a recognized legal cause of action (“tort of discrimination”).

• The action was statute-barred; the limitation period expired before the lawsuit was commenced.

• Appellant’s argument that limitation period was tolled due to incapacity was rejected for lack of sufficient evidence.

• Appeal involved a procedural dispute over including a transcript of oral arguments in the appeal record.

• The Court found the transcript was unnecessary, as the hearing below was conducted on a paper record.

• Motion to overturn a judge’s discretionary procedural ruling failed, with no legal or factual error found.

Facts and outcome of the case

The background and original claim

Haytham Elzayat initiated a legal action against Rogers Communications, claiming that he suffered harm due to statements and conduct by Rogers’ representatives during employment-related interviews held in 2015. He launched the lawsuit in 2022, alleging what he termed a “tort of discrimination.” Elzayat argued that this wrongful conduct gave rise to actionable relief. However, the motion judge who heard the summary judgment dismissed the action, concluding there was no legally recognized “tort of discrimination” in Canadian law. Furthermore, the judge determined the claim was time-barred under the applicable limitation period.

The limitation period and incapacity argument

The appellant sought to argue that his action should not be dismissed as out of time because he was incapacitated, which he claimed had prevented him from commencing the lawsuit sooner. The motion judge rejected this argument, finding that Elzayat had demonstrated the capacity to initiate and defend legal proceedings during the relevant timeframe (2015–2022). This factual finding undercut his attempt to invoke the exception for limitation periods based on legal incapacity.

Procedural issue on appeal: the transcript motion

After losing at summary judgment, Elzayat appealed. As part of his appeal strategy, he attempted to include a transcript of the oral arguments made at the summary judgment hearing. Justice Roberts of the Court of Appeal denied that request, finding that the transcript was irrelevant to the issues on appeal. She emphasized that the motion had proceeded entirely on a written record with no live testimony, and that the transcript did not serve any evidentiary or procedural need.

Motion to overturn the procedural ruling

Elzayat then brought a motion under section 7(5) of the Courts of Justice Act to have a panel of the Court of Appeal review Justice Roberts’ order. The reviewing panel, consisting of Justices Zarnett, Monahan, and Madsen, examined whether the single judge had made any legal or procedural error. They concluded she had not. The panel reaffirmed the deferential standard that applies when reviewing a judge’s discretionary ruling and held that Roberts had correctly identified the legal principles and reached a reasonable result.

Final outcome and costs

The Court of Appeal dismissed Elzayat’s motion. The court saw no basis to interfere with Justice Roberts’ decision and found no error of law or fact. As a result, the appeal proceeded without the requested transcript being added to the record. The court awarded costs to Rogers Communications in the amount of $3,500, inclusive of taxes and disbursements. Thus, Rogers successfully defended both the original summary judgment and the procedural motion brought before the appellate court.