Executive Summary: Key Legal and Evidentiary Issues

• Rogers Communications successfully moved for security for costs against self-represented applicant Haytham Elzayat under Federal Courts Rules 416(1)(c) and 416(1)(f)

• The applicant failed to provide a physical address in his application for judicial review, potentially jeopardizing Rogers' ability to recover costs through enforcement procedures

• Outstanding unpaid costs awards totaling $5,000 from the Court of Appeal for Ontario supported Rogers' motion under Rule 416(1)(f)

• The CHRC determined it would not deal with Mr. Elzayat's 2024 discrimination complaint regarding 2015 job interviews because it was filed approximately 9 years after the alleged events

• Self-represented litigants must comply with procedural rules equally with represented parties and cannot receive additional rights or special dispensations

• Security for costs was ordered at $1,500 rather than the requested $16,000, considering the applicant's limited financial means while ensuring the amount was not illusory

Background of the dispute

Haytham Elzayat attended employment interviews with Rogers Communications in April and August 2015, as well as other employment interviews in 2018, but was not hired. On October 10, 2024, Mr. Elzayat filed a complaint with the Canadian Human Rights Commission alleging discrimination that occurred during the 2015 interviews. This complaint was filed approximately 9 years after the alleged discriminatory events and approximately 8 years after the expiry of the one-year time period described at paragraph 41(1)(e) of the Canadian Human Rights Act.

The CHRC decision

The CHRC decided on August 11, 2025, not to deal with Mr. Elzayat's complaint. Mr. Elzayat argued he was sick and incapable of filing his complaint in a timely manner, and that he did not discover that questions regarding his country of origin could constitute discrimination until 2024. The CHRC considered the parties' evidence and submissions and noted particularly that Mr. Elzayat had commenced, participated in, and appeared at hearings in numerous other proceedings between 2015 and 2024, including a 2019 CHRC complaint against Rogers regarding alleged discrimination during 2018 employment interviews. The CHRC determined that, in view of the other activities which the applicant had been capable of undertaking between 2015 and 2024, it was not plain and obvious that he was incapable of submitting his complaint within the prescribed time or shortly thereafter. The CHRC also decided that the circumstances did not warrant extending the time set out in the CHRA.

Related Ontario proceedings

On November 18, 2022, Mr. Elzayat caused a statement of claim to be issued in the Ontario Superior Court of Justice claiming damages from Rogers related to the alleged events of discrimination that occurred during the 2015 interviews. The parties brought competing summary judgment motions. Justice Akazaki heard the parties on August 6, 2024, and by Order made on August 19, 2024, dismissed the applicant's claims on the basis there was no common law remedy for discrimination and that his claims were statute barred and out of time by operation of the Limitations Act, 2002. Justice Akazaki ordered the applicant to pay Rogers costs fixed in the amount of $20,000. On October 11, 2024, Mr. Elzayat filed an appeal with the Court of Appeal for Ontario. He then brought a motion for an order permitting him to use a transcription of the hearing as evidence on his appeal, which Justice Roberts dismissed on November 12, 2024, ordering the applicant to pay Rogers costs of the motion fixed at $1,500. Mr. Elzayat moved for a review by a panel of the Court of Appeal for Ontario, which by Order made on April 29, 2025, rejected his review request and ordered him to pay Rogers costs fixed at $3,500. The costs awards made by the Court of Appeal for Ontario in the combined amount of $5,000 remained unpaid by the applicant.

The security for costs motion

Rogers brought a motion seeking $16,000 in security for costs pursuant to Rule 416 of the Federal Courts Rules. Rogers relied on multiple grounds: Rule 416(1)(c) because the applicant had not provided an address for service in his application for judicial review; Rule 416(1)(e) because the applicant had other proceedings for the same relief pending elsewhere; Rule 416(1)(f) because the applicant had outstanding costs awards payable to Rogers that remained unpaid; and Rule 416(1)(g) because there was reason to believe the application was frivolous and vexatious and the applicant had insufficient assets in Canada to pay a costs award. The motion was originally scheduled as an oral hearing but was adjourned due to the applicant's inability to access a real-time transcription on his electronic device. Rogers thereafter elected to have its motion determined on the basis of written representations pursuant to Rule 369.

The Court's analysis of the Rule 416 grounds

Justice Duchesne found that Rogers led sufficient evidence to establish an entitlement to an order for security for costs pursuant to Rule 416(1)(c). The applicant's application for judicial review did not contain any physical address, only an email address. While the Court appreciated the applicant's argument that his landlords were not allowing him to use his mailing address and that any breach would result in eviction, these arguments were not supported by any evidence admissible on the motion. The Court also found Rogers established entitlement under Rule 416(1)(f) because the costs awards made by the Court of Appeal for Ontario on November 12, 2024, and April 29, 2025, were payable costs orders made against the applicant that remained unpaid. However, the Court disagreed with Rogers' argument under Rule 416(1)(e), finding that the relief sought in this proceeding—judicial review of the CHRC's decision—was distinct from the claims for damages in the Ontario proceedings and the Federal Court action. The Court similarly found Rogers had not established that the application was frivolous and vexatious under Rule 416(1)(g), as the issues in this proceeding were different from those before the Ontario courts, and there was no evidence it was brought for an improper purpose.

Evidentiary issues

The Court addressed evidentiary deficiencies from both parties. Rogers' draft bill of costs reflecting anticipated Tariff B costs in the amount of $14,220 plus HST was not properly led in evidence pursuant to Rule 80(3) as it was not an exhibit to an affidavit, was not identified in Rogers' notice of motion as contemplated by Rule 359(d), and was not a document previously filed with the Court as contemplated by Rule 364(2)(e). It was therefore inadmissible and given no weight. Much of the applicant's documentary evidence was similarly inadmissible because documents were included as "exhibits" not attached to any affidavit as documentary evidence in accordance with Rule 80(3). The Court emphasized that while it sympathizes with self-represented litigants, Rule 122(a) provides explicitly that a party who is not represented by a solicitor shall do everything required to be done by a solicitor under the Rules, and this latitude cannot give a self-represented litigant additional rights or special dispensations.

The ruling and outcome

Rogers Communications' motion for security for costs was granted, and Mr. Elzayat was ordered to post security in the amount of $1,500. Justice Duchesne exercised discretion pursuant to Rule 400(1), considering that Rogers' evidence indicated the applicant receives approximately $15,000 per annum in disability payments from the Province of Ontario, and that there was no evidence led as to the applicant's other assets. The Court found this amount was not illusory and was not oppressive so as to unfairly hamper the judicial review proceeding. As provided by Rule 416(3), Mr. Elzayat may not take any further steps in the proceeding other than an appeal of this order until the security ordered to be given is given. No costs were awarded on the motion.