COURT FILE NO.: 18-75073 DATE: 2019-04-10 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Thomas D. Kerr Plaintiff/Moving Party – and – Omur Sezerman Defendant/Respondent - and – Oz Optics Ltd. and Zahide Sezerman Defendants

Self-represented – P. Bates agent for the purpose of the motion Self-represented N. Karnis for Oz Optics Ltd. and Zahide Sezerman

JUSTICE SALLY GOMERY

Endorsement

[1] The defendants Oz Optics Ltd., Zahide Sezerman and Omur Sezerman (collectively, “Oz”) seek my recusal as the case management judge in this matter. Oz contends that the record in its entirety gives rise to a reasonable apprehension of bias against it. It argues, in particular, that my decision to adjourn its summary judgment motion in January 2019 prejudiced its interests and that my costs decisions have unfairly favoured Mr. Kerr.

[2] For the reasons that follow, I am dismissing the motion to recuse.

Overview of the litigation at issue

[3] Thomas Kerr is a lawyer. He was employed by Oz Optics Ltd. as senior legal counsel in 2016-17. After leaving the company, he began this action in early 2018 for constructive dismissal and other causes of action against Oz (the “constructive dismissal action”). He alleges that Omur Sezerman, the president of Oz Optics Ltd., abused and harassed him until he was forced to quit the company. Oz has counterclaimed against him claiming damages arising from his abrupt departure and, more recently, defamation.

[4] After Mr. Kerr began his constructive dismissal action, Oz Optics Ltd. started a separate action against him to recover money loaned to him during his employment (the “loan action”). Mr. Kerr counterclaimed with the same allegations and claims he is making in the constructive dismissal action.

[5] As I will set out in more detail below, Oz Optics Ltd. obtained a summary judgment in its favour in the loan action, which was stayed pending resolution of the constructive dismissal claim. In June 2018, I consolidated the two actions. More recently, Mr. Kerr has discontinued his counterclaim in the loan action.

[6] As a result, the unresolved elements of the litigation are Mr. Kerr’s claim for damages arising from his employment with Oz Optics Ltd., and Oz’s counterclaim against him.

Procedural history

Justice Maranger’s May 2018 order

[7] In May 2018, the parties argued three motions before Maranger J.

[8] First, Oz asked the court to strike over forty paragraphs of Mr. Kerr’s statement of claim in the constructive dismissal action under rule 25.11 of the Rules of Civil Procedure. It argued that the allegations referred to privileged information or were scandalous, frivolous and vexatious. If the court did not strike the allegations, Oz asked the court to seal its record under s. 137 of the Courts of Justice Act.

[9] In his endorsement, Maranger J. dismissed the motion to strike but ordered the court record sealed; Kerr v. Oz Optics Ltd., 2018 ONSC 3365 (the “May 2018 endorsement”), at para. 9. He reasoned as follows:

In my view, [Mr. Kerr’s] statement of claim while containing potentially volatile and prejudicial information does not in my estimation violate rule 25.11. The allegations levied go directly to the issue of the constructive dismissal. With that said, in so far as there is information that might be prejudicial to a separate lawsuit involving the same plaintiff, and or sensitive information as between a corporation and a former employee, I would order that the pleadings not be open to the public, remain confidential, and subject to a sealing order pursuant to s. 137(2) of the Courts of Justice Act.

[10] The “separate lawsuit” mentioned by Maranger J. is an action against the Canadian Professional Soccer League and others by Oz Merchandising Inc., another company controlled by Mr. Sezerman (the “soccer action”). The soccer action was commenced in 2005. It was set for trial in October 2017, but adjourned at the request of Oz Merchandising Inc. as it was not ready to proceed. The soccer action is now set for an 8-week jury trial beginning April 15, 2019.

[11] Second, Oz sought summary judgment on the loan action. Maranger J. granted this motion. At paras. 11-20 of the May 2018 endorsement, he found there was no genuine issue for trial and ordered Mr. Kerr to pay Oz Optics Ltd. $45,119.05. He suspended enforcement of this order pending the resolution of the constructive dismissal action.

[12] The third motion considered by Maranger J. was a request by Mr. Kerr for the constructive dismissal and loan actions to be referred to case management. Justice Maranger granted this motion.

[13] Maranger J. declined to order any costs on the three motions because, in his view, success had been divided. He noted at paras. 22 and 23 of his endorsement that, even though Oz Optics Ltd. had obtained a summary judgment, Mr. Kerr’s pleadings in the constructive dismissal action had not been struck, he had obtained a referral to case management, and the enforcement of the order to repay the loan was stayed.

The June 2018 motion

[14] My first involvement in this matter was in June 2018, when I heard a motion by Mr. Kerr for further production by Oz, further and better affidavits of documents, and the consolidation of the two actions. I granted the motion in part, ordering the consolidation and some of the further production requested by Mr. Kerr in the constructive dismissal action. I denied his requests for production in the loan action and for further and better affidavits from Mr. and Mrs. Sezerman. Given his relative success on the motion, however, I awarded Mr. Kerr $500 in costs.

[15] Although Oz served a notice of motion for leave to appeal my June 2018 order to the Divisional Court in Toronto, it later abandoned the motion.

The August 22, 2018 case conference

[16] The senior regional justice appointed me as the case management judge in August 2018.

[17] On August 22, 2018, I held a case conference. I convened the case conference after receiving letters from counsel for Oz and Mr. Kerr saying that they were unable to agree on the form and contents of the order stemming from my June 2018 decision.

[18] At the case conference, I approved the order in the form proposed by Oz. I also told the parties that going forward they must comply with rule 1.09 of the Rules of Civil Procedure, which limits how parties may communicate with judges. If they could not agree on correspondence to be sent to me, they should seek a case conference. I included this direction in my written endorsement of the case conference.

The September 13, 2018 case conference

[19] On September 13, 2018, I held a second case conference to set a timetable for next steps in the proceedings and to deal with various motions that the parties had either already served or intended to make:

a) Mr. Kerr had served a motion to amend his statement of claim and for other relief, which the parties agreed could proceed as a motion in writing. In my endorsement, I set a timetable for the submission of materials in respect of this motion. As a result of the timetable, all materials were due by late October 2018. b) Mr. Kerr had also served a motion to amend his counterclaim in the loan action. I advised him that, since his claim in the constructive dismissal action and his counterclaim in the loan action were completely duplicative, he could pursue one or the other but not both. Mr. Kerr elected to pursue the constructive dismissal action. I therefore ordered that the counterclaim in the loan action be discontinued. I advised Oz that, if it wished to pursue costs arising from the discontinuance, it could do so by filing a bill of costs at least three days before the next case conference. c) Oz had served a motion for summary judgment in the constructive dismissal action, and sought an urgent hearing date for it. Oz explained that it wanted a hearing as soon as possible so that its counsel and Mr. Sezerman could focus on preparation for the April 2019 trial of the soccer action. I advised the parties that Mr. Kerr’s pleadings motion must be resolved first, and set a timetable that would enable the summary judgment motion to be heard in mid-January 2019. d) Oz had served a motion for security for costs some months earlier but had not set it down for hearing. I directed that materials would have to be served at least seven days before the next case conference if Oz wished to pursue the motion. If no materials were served, Mr. Kerr could seek costs arising from the abandonment of the motion by filing a bill of costs at least three days before the next case conference. e) Mr. Kerr intended to serve a motion to terminate Mr. Sezerman’s right to conduct any further examination for discovery of him, on the basis that his conduct of an examination on July 27, 2018 had been abusive. I directed Mr. Kerr to serve and file a notice of motion by no later than September 28, 2018, and suspended any further examination of Mr. Kerr pending its outcome.

[20] At the September 13, 2008 case conference, Mr. Kerr advised that Oz had not complied with my June 2018 order. Counsel for Oz provided Mr. Kerr with the balance of the productions at the case conference as well as a cheque for the costs. I accordingly made no order with respect to any earlier non-compliance.

Mr. Kerr’s discovery motion

[21] As directed in the September 2018 endorsement, Mr. Kerr served and filed a motion in writing to terminate or limit Mr. Sezerman’s discovery rights (the “discovery motion”). On July 27, 2018, when Mr. Kerr attended for an examination for discovery scheduled by Oz’s lawyer, he was told that Mr. Sezerman had decided to represent himself. After Mr. Karnis had examined Mr. Kerr for an hour and a half, Mr. Sezerman examined him for a further five and a half hours. During his examination, Mr. Sezerman threatened Mr. Kerr, called him a liar or accused him of lying over fifty times, and accused him repeatedly of having racist views.

[22] On October 12, 2018, I held that Mr. Sezerman’s conduct had been improper and that it was appropriate to limit his right to further examination of Mr. Kerr under rule 34.14(1) of the Rules of Civil Procedure. Although Mr. Kerr sought to terminate Mr. Sezerman’s discovery rights altogether, I concluded that this would be unfair given the potential amendments to Mr. Kerr’s statement of claim. I therefore directed that Mr. Sezerman could examine Mr. Kerr for an additional 45 minutes, to be exercised once Mr. Kerr had either amended his pleading or been denied leave to do so.

[23] I also ruled that Mr. Kerr was entitled to costs of the motion and any costs thrown away as a result of Mr. Sezerman’s conduct, and invited the parties to make written submissions on quantum.

The November 6, 2018 order

[24] On November 6, 2018, I issued an endorsement on costs on the discovery motion and the defendants’ security for costs motion, Mr. Kerr’s motion to amend his pleadings and his request for further directions:

• I ordered Mr. Sezerman to pay Mr. Kerr partial indemnity costs of $1500 inclusive of fees, disbursements and HST on the discovery motion. I found that Mr. Kerr substantively won the motion, even though he did not get everything he wanted. I also concluded that Mr. Sezerman’s conduct at the examination for discovery warranted sanction.
• I held that it was premature to make any ruling on costs thrown away on the motion for security for costs, as no further case conferences had been held and so it was not yet clear that Oz had abandoned it.
• I granted Mr. Kerr leave to make all of the amendments sought to his pleadings, except for one amendment which was contested by Oz and which, in my view, served no purpose.
• I declined to give further direction requested by Mr. Kerr with respect to the loan action.

[25] Oz applied to the Divisional Court for leave to appeal my November 12, 2018 order. On March 8, 2019, the Court dismissed the motion and ordered Oz to pay additional costs of $1500 to Mr. Kerr.

The November 30, 2018 case conference

[26] On November 30, 2018, at the parties’ request, I held another case conference to deal with issues in connection with Oz’s summary judgment motion set for January 18, 2019. Both sides sought directions on production and examination. Oz also sought leave to amend its counterclaim in the constructive dismissal action to add a defamation claim, and to argue for security for costs if it did not obtain summary judgment. I amended the timetable to address the production and examination issues, granted Oz leave to amend, and increased the hearing time for the motion from three hours to four hours.

Adjournment of the summary judgment motion

[27] On Monday, January 14, 2019, the trial co-ordinator forwarded correspondence to me that she had received from the parties.

[28] On January 10, 2019, Mr. Karnis, counsel to Oz Optics Ltd. and Mrs. Sezerman, wrote to ask for the court’s assistance in obtaining disclosure of certain records that Mr. Kerr had refused to provide during cross-examinations in December 2018. Mr. Karnis also noted that Mr. Kerr had failed to file his factum by the deadline set in the timetable order, and asked whether the hearing on January 18 could begin at 9:00 a.m. to accommodate Mr. Sezerman’s travel plans later that day.

[29] Mr. Karnis’ letter prompted a lengthy responding letter to me from Mr. Kerr attaching other correspondence between the parties over the past weeks. Mr. Kerr took the position that Oz had to obtain a preliminary ruling on evidence it proposed to use at the upcoming hearing. He also advised that he would seek leave to file a further affidavit about Oz’s conduct in connection with cross-examinations and alluded to the possibility that the January 18 hearing would have to be adjourned.

[30] Mr. Karnis replied with another letter to me on January 11, 2019. In response to Mr. Kerr’s observation that he had not complied with rule 1.09, Mr. Karnis stated that he “felt it was imperative we send a letter to the court, as Mr. Kerr was refusing to provide information we deemed critical to our argument for the motion on January 18, 2018”. He advised that he would not consent to any further affidavit from Mr. Kerr, but also that he had no wish to delay the motion date.

[31] After I received a copy of all of this correspondence on January 14, I asked the trial co-ordinator’s office to contact the parties to see if they needed to arrange a case conference to resolve urgent issues prior to the hearing. This message was sent on the morning of January 15. Counsel for Oz replied by saying that a case conference by telephone should be set. Mr. Kerr, however, had not responded by the morning of January 16.

[32] At that point, as the parties had raised issues that had to be resolved prior to the summary judgment hearing and a case conference could not be organized in a timely way, I advised the parties that I was adjourning the hearing.

[33] The Oz defendants objected strongly to this decision, and asked me to reconsider. Mr. Kerr also indicated that his preference would be to proceed on January 18 as scheduled. After reviewing their submissions as well as the correspondence I had received earlier, I declined to change my decision. My reasons were set out in a message sent to the parties on January 16, 2019, which I later attached to my endorsement of the case conference two days later. It read in part as follows:

Given the little time remaining before the hearing date, a case conference addressing issues in advance of the hearing would have had to be held by this morning at the latest. I understand that Mr. Kerr did not receive the message from the trial co-ordinators’ office until today as he was at work. I do not fault him for this. I do fault all of the parties for proceeding as they have, in breach of my August direction and rule 1.09. If Mr. Karnis, Mr. Sezerman and Mr. Kerr had sought a case conference last week instead of writing to me, any issues could have been addressed in a timely way.

[34] In this same e-mail, I advised the parties that I would consider whether the summary judgment motion should be rescheduled on an urgent basis at a case conference to be held on January 18, 2019.

The January 18, 2019 case conference

[35] The main focus of the discussion at the January 18, 2019 case conference was the re-scheduling of Oz’s summary judgment motion. Oz argued that the motion should be heard on an urgent basis because of its potential impact on the trial in the soccer action in April. I concluded that the summary judgment motion was not urgent. I will return to my reasons for this decision below.

[36] Various new dates for the summary judgment motion were canvassed. Oz rejected the earliest dates available on a non-urgent basis because it was involved in other hearings beginning in September 2019. I accordingly directed the parties to seek a new date in late November or early December 2019 from the trial co-ordinator’s office.

[37] The parties also indicated that, in advance of the summary judgment hearing, they needed rulings on the evidentiary issues raised in their January letters to me. I directed them to obtain a case conference date and serve and file any materials supporting the orders sought at least three days in advance of the date set.

The motion to recuse

[38] Oz argues that the record of my decisions as a case management judge show bias or give rise to a reasonable apprehension of bias. It relies in particular on my decision to adjourn the summary judgment motion in January 2019 and the costs awards against the Oz defendants in June and November 2018.

[39] Oz has filed three affidavits in support of the recusal motion. In Mr. Sezerman’s affidavit, he says that he feels I have not treated the parties equally, because I have not made any negative comments about Mr. Kerr’s allegations about Oz or ordered him to pay any costs. He also criticizes my failure to resolve the production issues raised in Mr. Karnis’ January 10 letter by way of a telephone conference prior to the January 18 hearing date and my adjournment of the summary judgment motion even though no-one requested it. In their affidavits, Elizabeth Ramirez and Evgeny Kozlov, members of the Oz Optics legal team, relate a concern about how I arrived at my decision on June 15, 2018 with respect to Mr. Kerr’s motion for additional production.

The principles applicable to a recusal motion

[40] In Consentino v. Dominaco Developments Inc., 2018 ONSC 4092 (“Consentino”), at paras. 31 to 51, Daley RSJ did a thorough analysis of the caselaw on motions to recuse for bias or reasonable apprehension of bias. The applicable principles are as follows:

(1) Bias is “a state of mind that is in some way predisposed to a particular result, or that is closed with regard to particular issues”; R. v. S (R.D.), [1997] 3 S.C.R. 484 (“S.(R.D.)”), at para. 105. (2) A party seeking a judge’s recusal must meet a two-part test. The standard is not what the moving party subjectively believes, but the reasonable belief of a reasonable person. The moving party must show that a reasonable person would believe that the judge is biased, and that there are objective grounds for this belief; S.(R.D.), at para. 111. The test is whether “an informed person, viewing the matter realistically, and having thought the matter through, [would] conclude that the trial judge would not decide the matter fairly”; R. v. Grant, 2016 ONCA 639, at para. 128. (3) The existence of reasonable apprehension of bias is evaluated “through the eyes of the reasonable, informed, practical and realistic person” who is familiar with the circumstances of the case and with the judicial process; (S.(R.D.)”), at paras. 36 and 37. (4) The threshold for finding a real or perceived bias is high because “it calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice”; (S.(R.D.), at para. 113. (5) There is a “strong presumption of judicial impartiality”; R. v. Nero, 2016 ONCA 160, at para. 30. To overcome this presumption, a party challenging a judge’s impartiality must present cogent evidence in support of the allegation of bias or apprehension of bias; R. v. Montoya, 2015 ONCA 786, at para. 9. To put it another way, “the fact that a litigant has complained about a judge is not a sufficient basis for recusal – otherwise, all unhappy litigants could ensure the replacement of a judge who had found against them by complaining about the judge”; Broda v. Broda, 2000 ABQB 948, at para. 3.

[41] The test for recusal of a case management judge is not any different than the test used with respect to the removal of a trial judge, but its application takes into consideration the objectives and characteristics of a case management system. This system is designed to give litigants better access to the courts and a more efficient process for resolving pre-trial issues. Because the case management judge assigned to the matter hears all pre-trial motions, he or she becomes familiar with the parties’ claims and arguments. This familiarity enhances the judge’s understanding of the issues raised on a procedural motion and streamlines the process.

[42] A litigant seeking to recuse a case management judge cannot do so merely on the grounds that the judge has issued decisions on the matter that work in favour of the opposing party. The applicant “must establish an apprehension, reasonable in the circumstances, that the case management judge’s views are such that she is no longer capable of being persuaded by the evidence to be filed (if any) and legal arguments to be raised in subsequent motions, in order for her to be disqualified”; Control and Metering Ltd. v. Karpowicz, [1994] O.J. No. 345 (ONSC), at para. 38; Rogers Wireless Inc. v. Celluland Canada Inc., 2010 ONSC 2301; both cited in Consentino, at paras. 48 and 49.

Application of the principles to this case

[43] The question I must answer is whether Oz has provided any cogent evidence of bias or an apprehension of bias, such that a reasonably informed person would conclude that I am predisposed to a particular result or have closed my mind with regard to particular issues.

The adjournment of the summary judgment motion

[44] The primary basis for Oz’s recusal motion is that I adjourned its summary judgment motion.

[45] None of the parties sought an adjournment. It is true that Mr. Kerr raised the possibility of an adjournment in his letter of January 11, 2019. When they were advised on January 16 of my decision, however, both Oz and Mr. Kerr expressed a preference to proceed with the hearing as scheduled. As a result, I cannot find that a reasonable person would conclude that the adjournment decision, on its face, shows any bias against Oz.

[46] Oz nonetheless argues that the adjournment gives rise to a reasonable apprehension of bias because any delay prejudices its interests. It made these same arguments at the January 18 case conference when it asked me to set a new date for the motion on an urgent basis. Oz contended that an early hearing was needed so that it could focus on preparation for the soccer action trial in April. It also argued that it needed to obtain a summary judgment dismissing the constructive dismissal action before mid-April 2019 because the allegations in Mr. Kerr’s statement of claim, as well as the very existence of the action, might poison the minds of the judge and jury presiding at the soccer action trial.

[47] In my endorsement of the case conference, I explained why Oz had not established the need for an urgent hearing of the summary judgment motion:

First of all, if the hearing is postponed until the autumn, Mr. Kerr’s action will not distract the parties from preparing for the April trial. They will have more time to devote to trial preparation than they would if the motion were postponed to February. Second, no evidence has been presented to me that Mr. Kerr is engaged in ongoing false and defamatory statements about the Sezermans or Oz Optics. If he has engaged in any such statements in the past, the damage is already done. Furthermore, based on the record before me, the statements that Mr. Kerr may have made to prospective employers about the circumstances of his departure from Oz Optics do not give rise to a credible risk of tainting the jury pool. If Oz Optics continues to believe this is a legitimate concern, the parties to the April trial may provide the trial judge with evidence in support and ask that potential jurors be questioned about any knowledge they may have of Mr. Kerr or the facts giving rise to his claim. I reject Mr. Sezerman’s contention that judges in Ottawa, including this judge, have demonstrated a bias against him, or that they may view him less favourably if the summary judgment motion is not heard ahead of the April trial. I have been presented with no evidence of any bias against any of the parties to this action. Finally, I have no reason to think that the outcome of the summary judgment motion would have any bearing on the determination of the issues in the action to be heard in April. Even if I did, there is no guarantee that a decision on the motion would be issued by that time even if it were heard within the next few weeks. There is no prospect whatsoever of an appellate court rendering a decision on the merits of an appeal of that decision before mid-April.

[48] Since I issued that endorsement, Oz has not provided any further evidence that supports its arguments on these points. As a result I remain unable to find that they have shown any real risk of prejudice as a result of the adjournment of their summary judgment motion until after the soccer action trial has taken place.

[49] In its rule 25.11 motion last May, Oz contended that the allegations in Mr. Kerr’s statement of claim were defamatory and vexatious. As indicated in the passage from his May 2018 endorsement cited above, Maranger J. agreed that some allegations were potentially prejudicial to Oz’s interests in the soccer action and ordered the court records sealed.

[50] In its argument on the recusal motion, Oz asserted that the court records had until recently not been sealed as ordered by Justice Maranger. It has not however filed any evidence supporting this assertion. I cannot in these circumstances assume that the allegations in Mr. Kerr’s statement of claim have been publically disseminated. Furthermore, as noted in my January 18 endorsement, counsel for Oz may make submissions to the judge presiding the soccer action trial that potential jurors should be questioned about their knowledge of the allegations.

[51] Oz is clearly disappointed with the adjournment. Mr. Sezerman told me that he and the Oz legal team spent many hours in December and January preparing for a hearing on January 18. They believe the adjournment was unnecessary because the parties’ procedural disputes could have been addressed in a brief phone call. I do not know how long it would have taken to resolve these disputes; I have not yet received materials that set out in detail the issues or the reasons for the positions taken by the parties. But the question on this recusal motion is not whether delaying the summary judgment hearing could have been avoided, but whether my decision to adjourn demonstrates any bias or raises a reasonable apprehension of bias. Oz’s disappointment, however understandable, does not in itself justify my removal as the case conference judge.

Costs orders

[52] Oz argues that my orders on costs in June and November 2018 could also give rise to a reasonable apprehension of bias. In its view, it is unfair that Oz has twice been ordered to pay costs and that the result is that it is effectively funding Mr. Kerr’s action against it.

[53] Oz abandoned its motion to appeal the first order and the Divisional Court denied it leave to appeal the second order. If the orders were unjustified, I would have expected that the history on these appeals would be different.

[54] The total costs awarded to Mr. Kerr as a result of these decisions is $2000. Given the number of motions, case conferences, examinations for discovery, cross-examinations and correspondence in this litigation over the past ten months, this total can only represent a small fraction of the costs incurred by the parties. I do not find, in these circumstances, that a reasonable person would conclude that the cost orders raise an apprehension of bias.

Lack of criticism of Mr. Kerr

[55] Oz complains that I have failed to voice any criticism of Mr. Kerr’s constructive dismissal action, which it characterizes as vexatious and totally lacking in merit.

[56] It would be inappropriate for me, in my capacity of case management judge, to make comments on the merits of any party’s case.

Motivations for my June 2018 decision

[57] Finally, Oz suggests that my June 2018 decision was improperly motivated. In her affidavit, Ms. Ramirez says that, based on my questions to Mr. Kerr during the hearing, she thought I would dismiss his motion. When I took a ten-minute break before issuing my decision, she says that other lawyers in the court room shared her view. She was therefore shocked when I granted Mr. Kerr’s motion and awarded him costs. Ms. Ramirez says that she “left the court room in disbelief, trying to think of a reasonable explanation of what might have happened during the break that influenced the Honourable Justice Gomery in making such an unexpected decision”. Mr. Kozlov’s affidavit is to the same effect.

[58] As already mentioned, Oz abandoned its motion for leave to appeal the June 2018 decision. I assume that it would not have done so if, in its view, the decision was clearly unsound or contrary to applicable legal principles.

[59] In their affidavits in support of the motion, Mr. Kozlov and Ms. Ramirez have not referred to any specific comments I made during the June 2018 hearing that suggested I had made my mind up on Mr. Kerr’s motion prior to taking a break to consider my decision. Their affidavits suggest instead that I expressed some skepticism about Mr. Kerr’s arguments. This is not surprising since I did not grant Mr. Kerr all of the relief he sought.

[60] In my view, a reasonably informed person would not apprehend any bias on the part of the judge simply because one of the parties was surprised by the outcome of a hearing, or infer that the judge must have been swayed by something that occurred out of court during a ten minute break.

Cumulative effect

[61] Oz argues that, even if it cannot point to any single act or comment I have made that suggests bias, the cumulative effect on my actions as the case management judge is an apprehension of bias against it.

[62] As noted by the Ontario Court of Appeal in Beard Winter v. Shekdor, 2006 ONCA 493 at para. 10:

[A judge is best advised to remove himself if there is any air of reality to a bias claim. That said, judges do the administration of justice a disservice by simply yielding to entirely unreasonable and unsubstantiated recusal demands. Litigants are not entitled to pick their judge. They are not entitled to effectively eliminate judges randomly assigned to their case by raising specious partiality claims against those judges. To step aside in the face of a specious bias claim is to give credence to a most objectionable tactic.

[63] On the evidence presented by Oz, there is no air of reality to its claim of bias or a reasonable apprehension of bias. There is therefore no basis on which I could grant the motion to recuse.

Conclusion

[64] Oz’s recusal motion is dismissed.

[65] If the parties are unable to agree on costs within five days of receipt of this decision, Mr. Kerr may submit submissions on costs, along with a cost outline, by no later than April 19, 2019. Oz may make responding submissions, with a cost outline, by no later than April 26, 2019. The submissions from each party may not be more than three pages in length.

Released: April 10, 2019

COURT FILE NO.: 18-75073 DATE: 2019-04-10 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Thomas D. Kerr Plaintiff/Moving Party – and – Omur Sezerman Defendant/Respondent - and – Oz Optics Ltd. and Zahide Sezerman Defendants ENDORSEMENT Justice S. Gomery Released: 2019/04/10