



COURT OF APPEAL FOR ONTARIO

CITATION: Kerr v. Sezerman, 2020 ONCA 364

DATE: 20200611

DOCKET: M51249 and M51463 (C67584)

Pepall, Hourigan and Roberts
    JJ.A.

BETWEEN

Thomas D. Kerr

Plaintiff (Respondent/

Moving Party in M51249/

Responding Party in M51463)

and

Omur Sezerman

Defendant (Appellant/

Responding Party in M51249/

Moving Party in M51463)

and

Oz Optics Ltd. and Zahide
    Sezerman

Defendants (Appellants/

Responding Parties in M51249/

Moving Parties in M51463)

Omur Sezerman, acting in person

Nicholas Karnis, for the appellants OZ
    Optics Ltd. and Zahide Sezerman

Thomas D. Kerr, acting in person

Heard: in writing

REASONS FOR DECISION

[1]

The respondent, Thomas Kerr, sued the
    appellants, OZ Optics Ltd., Omur Sezerman, and Zahide Sezerman, for
    constructive dismissal alleging that he suffered abuse and harassment in the
    course of his employment.

[2]

The appellants moved for summary judgment. In responding
    to the motion, Mr. Kerr served his own affidavit, as well as an affidavit sworn
    by Roger Branje, a former employee of OZ Optics Ltd. Mr. Sezerman, who is self-represented,
    conducted cross-examinations on the affidavits but did not serve notices of
    examination on either witness.

[3]

The appellants brought a motion to compel
    production of draft affidavits prepared by Mr. Kerr for Mr. Branje. Mr. Kerr
    opposed the motion, arguing that the draft affidavits were litigation
    privileged. The motion judge dismissed the motion, made an order prohibiting
    Mr. Sezerman from conducting any further examinations without first seeking
    leave of the court, and awarded costs of $1,500 in favour of Mr. Kerr.

[4]

The appellants appeal those orders to this
    court. Mr. Kerr has brought a motion to quash on the ground that the orders
    under appeal are interlocutory and must be appealed to the Divisional Court
    with leave. The appellants have in turn brought a motion for an order that, in
    the event this court determines the orders below are interlocutory, the appeal
    be transferred to the Divisional Court or, in the alternative, that they be
    granted an extension of time to seek leave to appeal to the Divisional Court.

[5]

We agree with the respondents submission that
    the orders appealed are interlocutory and that the correct appeal route is to
    the Divisional Court with leave. The appeal is quashed, the appellants must
    seek leave to appeal and any necessary time extension from the Divisional Court.

[6]

The respondent sought an order for his full
    costs of the motion to quash. He also sought costs on the motion to transfer. We
    see no reason to award costs on a higher scale. The appellants are jointly and severally
    liable for the respondents costs on these motions, which we fix in the
    all-inclusive sum of $1,000. Order to go accordingly.

S.E.
    Pepall J.A.

C.W.
    Hourigan J.A.

L.B.
    Roberts J.A.


