Executive Summary: Key Legal and Evidentiary Issues

• The appellant challenged a ruling denying the inclusion of an oral hearing transcript in the appeal record.

• The underlying action alleged a non-existent “tort of discrimination” arising from employment interviews.

• The motion judge dismissed the claim based on limitation periods and lack of legal foundation.

• The appellant argued that the transcript was essential to prove procedural unfairness at the summary judgment stage.

• The Court of Appeal reaffirmed that oral submissions are not evidence in a paper record motion and the transcript was unnecessary.

• The panel upheld the motion judge’s discretion, dismissing the appeal and awarding costs to the respondent.

Background and procedural history
Haytham Elzayat commenced a civil action in 2022 against Rogers Communications, alleging that he suffered harm based on statements and conduct by Rogers' representatives during employment-related interviews that took place in 2015. He framed his claim under a purported “tort of discrimination.” Rogers brought a motion for summary judgment, which was granted. The motion judge held that there was no such tort recognized under Ontario law and that the claim was barred by the two-year limitation period. The judge also rejected Elzayat’s argument that the limitation clock was suspended due to incapacity, finding that he had actively participated in other legal proceedings throughout the relevant period, demonstrating legal capacity.

Motion before a single judge and the issue on review
Following the dismissal of his action, Elzayat attempted to appeal and sought leave to include a transcript of oral submissions from the summary judgment motion as part of his appeal materials. Justice Roberts of the Court of Appeal denied the request, finding the transcript unnecessary. She emphasized that the summary judgment was decided on a paper record without oral evidence and that the transcript did not bear on any alleged procedural unfairness. She found no valid reason to depart from standard practice, where oral argument in such contexts does not form part of the evidentiary record.

Review of the single judge’s order
Elzayat then brought a motion under section 7(5) of the Courts of Justice Act to have the panel of the Court of Appeal review Justice Roberts’ discretionary ruling. The panel (Zarnett, Monahan, and Madsen JJ.A.) reviewed the request on a deferential standard, in accordance with established principles. The panel reiterated that it could only intervene if the judge had erred in law, failed to consider relevant principles, or made an unreasonable decision.

Court of Appeal’s analysis and outcome
The panel found that Justice Roberts had applied the correct legal framework and reached a reasonable and defensible conclusion. The transcript was not essential to resolving the appeal, as the motion below was paper-based and not factually disputed. Furthermore, Elzayat failed to identify any legal or procedural issue arising from the oral submissions that would require transcript review.

The Court also noted that the appellant’s new supplementary notice of appeal was filed only after the original hearing and provided no fresh basis for challenging the original decision. Accordingly, the motion was dismissed.

Disposition and costs
The Court of Appeal dismissed the appellant’s motion to include the transcript and ordered Elzayat to pay $3,500 in costs to Rogers Communications.

The case reinforces the importance of adhering to procedural norms in appellate practice and the limited circumstances under which transcripts of oral submissions are permitted in paper-based motions. It also highlights the courts' unwillingness to entertain claims based on legally unsupported torts, particularly when such claims are time-barred.