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 respondent’s 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 respondent’s 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.”