COURT FILE AND PARTIES
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: MARC RUTTENBERG & 2102803 ONTARIO INC., o/a PARAMOUNT EQUITY SOLUTIONS, plaintiffs
AND:
GERALD JUTSON a.k.a. GERRY JUTSON, JUTSUN MEDIA GROUP INC. c.o.b. as JMG PUBLICIST and JOHN DOE, defendants
BEFORE: Stinson J.
COUNSEL: Glen Perinot, for the plaintiffs
Gerald Jutsun, acting in person
HEARD: September 19, 2013
ENDORSEMENT
[1]
Introduction
On September 19, 2013 I conducted a telephone conference with counsel for the plaintiffs, Mr. Perinot and the defendant Mr. Jutsun. The telephone conference followed Mr. Perinot's letter dated September 10, 2013 requesting my assistance in the settlement and issuance of the order relating to my endorsement dated April 27, 2012. In addition to that letter, I had in hand Mr. Jutsun’s two letters of September 10, 2013, one addressed to me and the other addressed to Mr. Perinot. I also had available a copy of my endorsement dated 27 April 2012, the plaintiffs' notice of motion dated February 27, 2012 and Mr. Perinot's draft of the order that accompanied his September 10, 2013 letter.
2Mr. Perinot advised in his letter of September 10, 2013 that he had attempted to have a prior version of the draft order issued in May of 2012, without success. He recently learned that that draft had to be revised to more accurately reflect my endorsement and he had not been able to obtain the defendants' position on the form and content of the revised draft order. As a consequence, he requests that I settle the form of order.
3For his part, Mr. Jutsun asserts that, with the passage of time, events have overtaken the endorsement of April 27, 2012, such that it is no longer appropriate for my order to be issued. Specifically, he points out that, contrary to expectations as of April 27, 2012, the defendants’ cross-motion was not heard on June 26, 2012, and has not been heard to date. As well, there have been intervening settlement discussions (albeit very brief). Finally, Mr. Jutsun mentions that he has recently commenced an independent action against the plaintiffs seeking a significant sum of monetary damages.
[4]
Background
My endorsement dated 27 April 2012 concerned the plaintiffs' motion for an injunction. That motion had been scheduled some 2 ½ months previously, to be heard that week. Despite a timetable for the exchange of material having been fixed 2 ½ half months previously, Mr. Jutsun only served responding material on the day of the hearing; indeed, the court was not even provided with a bound copy of what Mr. Jutsun had prepared. I observed at the time that the plaintiffs should not be prejudiced by further delay in obtaining the relief they sought, by the last minute service of materials by the defendant.
5The matter was further complicated by the fact that the defendants were bringing a cross-motion, scheduled to be heard on June 26, 2012. The outcome of that cross-motion might bear on the issues on the plaintiffs' injunction motion. I therefore concluded that the appropriate course of action was to adjourn the plaintiffs' motion for an injunction, to be spoken to on June 26, 2012, and a new date fixed for its argument at that time.
6In order to counter-balance the unfairness of the delay in argument of the plaintiffs' injunction motion, however, and in light of the fact that the delay was attributable to the defendants’ failure to meet the timetable previously fixed, I imposed specific terms of the adjournment. Specifically, in paragraph 3 of those terms, I directed that "pending the final disposition of the plaintiffs’ motion (or other order of the court) an order will go against the defendants for the relief sought in paragraphs (b) and (c) of the notice of motion … and restraining the defendants from reposting, communicating or otherwise disseminating via the Internet or otherwise, the same or similar allegations about the plaintiffs as are found in the web locations referenced in paragraphs (b) and (c).”
7As it turned out, the defendants' cross-motion was not argued on June 26, 2012, apparently because the defendants failed to set it down. In response to questions posed by me, Mr. Jutsun conceded in our telephone conference that, over the past 15 months he has taken no formal steps to bring his motion before the court. Specifically, he did nothing between June 26, 2012 and at least February 2013. In February or March 2013 there were brief settlement discussions. Subsequent to March 2013, he has taken no steps to bring his cross-motion before the court.
[8]
Analysis
Mr. Jutsun argues that it is inappropriate for a formal order to issue reflecting the endorsement of 27 April 2012 because it was made at a time when it was contemplated that his cross-motion would be argued on June 26, 2012. Because his cross-motion has yet to be argued, he submits, the endorsement of 27 April 2012 is stale dated.
9I reject Mr. Jutsun’s submission for several reasons. Firstly, and primarily, the reason the defendants' cross-motion has not been argued is entirely attributable to the defendants. They are the ones who are seeking the relief sought in the cross-motion; they are the ones who are responsible for taking the steps necessary to set it down; they are the ones who failed to do so in June 2012; they are the ones who have taken no active steps to do so for some 15 months. To allow the defendants to somehow take advantage of the fact that their cross-motion has yet to be argued would be to allow them to take advantage of their own default.
10Secondly, Mr. Jutsun was in court on 27 April 2012. It was his late response to the plaintiffs’ motion that necessitated the adjournment. The court granted him an indulgence by adjourning the plaintiffs' motion so that his material could be brought before the court and his cross-motion argued. Terms were imposed, of which he was aware. Those terms were to continue in force "pending the final disposition of the plaintiffs’ motion or other order of the court". Those terms were not contingent upon the hearing of the defendants' cross-motion on June 26, 2012, although a request to modify or vacate those terms could have been made on that date or at any subsequent date had the defendants taken appropriate steps. No such steps have been taken and thus the terms remain in force.
11Finally, whether Mr. Jutsun has commenced other proceedings against the plaintiffs has no bearing on the effect of the order made on 27 April 2012. The defendants remain bound by its terms.
12Mr. Jutsun also raises the point that the plaintiffs have requested an affidavit of documents from him and have sought to set dates for examinations for discovery. He argues that that was somehow contrary to the terms of the order of 27 April 2012. I disagree. The endorsement of 27 April 2012 dealt merely with the orderly process of the interlocutory motions brought by each side: the plaintiffs' motion for an injunction and the defendants' cross-motion. The endorsement of 27 April 2012 had no impact on the orderly progress of the underlying action. In any event, it does not lie in the mouth of the defendants to argue that, because their cross-motion has not been argued (due to their own fault or neglect) the plaintiffs should be prevented from advancing the underlying lawsuit. I therefore do not accept Mr. Jutsun’s submissions on this point.
[13]
Conclusion
The plaintiffs attempted without success to have the order taken out promptly following the appearance on April 27, 2012. For technical reasons they were unsuccessful. They never abandoned their intention to obtain the relief sought. I therefore conclude that there is no reason why the formal order should not issue.
14Mr. Jutsun has no disagreement with the contents of the most recent form of draft order proposed by Mr. Perinot. I agree that it accurately reflects my endorsement of 27 April 2012. I have therefore signed it. The original signed copy will be left for pickup by Mr. Perinot at Judges Reception at Osgood Hall. It will be his responsibility to have the order formally entered.
Stinson J.
Date: September 30, 2013