Court of Appeal for Ontario

CITATION: ElZayat v. Ontario (Ombudsman), 2021 ONCA 336

DATE: 20210520

DOCKET: C68810

BEFORE: Huscroft, Paciocco and Jamal JJ.A.

BETWEEN

Haytham ElZayat

Plaintiff (Appellant)

and

Ontario Ombudsman

Defendant (Respondent)

COUNSEL:

Haytham ElZayat, acting in person

Edward O’Dwyer, Alia Rashid and Frank Cesario, for the respondent

HEARD: May 14, 2021 by video conference

On appeal from the order of Justice Frederick L. Myers of the Superior Court of Justice, dated August 18, 2020.

REASONS FOR DECISION

[1] The appellant submits the motion judge erred in granting summary judgment dismissing his action, and that the motion should not have been heard in his absence.

[2] We disagree.

[3] The motion judge found that the appellant knew of the summary judgment motion and chose not to participate, despite the court making specific provision to allow him to participate by telephone. The motion judge found that the interests of justice required that the motion be heard and that he would not have granted an adjournment if the appellant had requested one. This is a discretionary decision that is entitled to deference.

[4] The motion judge found that there was no genuine issue for trial: the respondent was immune from proceedings unless it could be shown that it acted in bad faith and there was no evidence of bad faith before the court. The appellant put forward no evidence on the motion.

[5] The motion judge made no legal errors and his decision granting summary judgment is entitled to deference.

[6] The appeal is dismissed. The respondent is entitled to costs, fixed in the amount of $4,500, all inclusive.

“Grant Huscroft J.A.”

“David M. Pacciocco J.A.”

“M. Jamal J.A.”