COURT FILE NO.: CV-13-483688

DATE: 2014/06/19

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gerald E. Jutsun, Plaintiff, Responding Party

AND:

Marc Ruttenberg et al., Defendants, Moving Parties

BEFORE: MASTER RONNA M. BROTT

COUNSEL:
Gerald E. Jutsun, Self-represented plaintiff

Deborah Berlach, Counsel for the Defendants Marc Ruttenberg, Noeline Ruttenberg, 2102830 Ontario Inc. o/a Paramount Equity Solutions

HEARD: June 5, 2014

ENDORSEMENT

[1] The Defendants Marc Ruttenberg, Noeline Ruttenberg, 2102830 Ontario Inc. o/a Paramount Equity Solutions (collectively the “moving defendants”) bring this motion to strike the Statement of Claim of the plaintiff Gerald E. Jutsun (“Mr. Jutsun”) pursuant to Rules 25.06, 25.11 and 27.02 of the Rules of Civil Procedure on the basis that the Statement of Claim violates the rules governing pleadings. Alternatively they seek an order to have this action be placed into case management together with related action No. CV-12-445268.

[3] The Statement of Claim in this action was issued by Mr. Jutsun on June 26, 2013. The moving defendants served and filed a Notice of Intent to Defend on or about July 30, 2013.

[4] Mr. Jutsun represented Richard and Carol Buchanan (“the Buchanans”) with respect to the refinancing of a mortgage on the Buchanan’s property (“the property”). The defendant Marc Ruttenberg (Mr. Ruttenberg”) and the defendant Noelline Ruttenberg (“Mrs. Ruttenberg”) own and operate the defendant 2102830 Ontario Inc. o/a Paramount Equity Solutions (“Paramount”). Paramount arranged for three mortgages for the Buchanans, two of which were held by a private lender, Scott Duffus (“Mr. Duffus”). The Buchanans stopped making mortgage payments and failed to discharge the mortgages. On or about April 27, 2009 Mr. Duffus’ counsel initiated proceedings to enforce the mortgages. Mr. Duffus obtained an Order granting him possession of the property. On or about May 4, 2010 the Buchanans and/or Mr. Jutsun were informed that the property must be vacant by May 11, 2010. The eviction from the property was carried out on May 11, 2010.

[5] Mr. Jutsun alleges that he was residing at the property and further that he had an office at the Buchanans’ property at the relevant time. His affidavit evidence is that he was on the property to conduct investigation and surveillance on Mr. Duffus and the other three lenders as he was of the view that none of the private lenders actually existed. He alleges that the mortgages were fraudulent. In oral argument Mr. Jutsun advised that for many years he lived and worked at the Buchanans’ property, carrying on businesses there with a number of employees.

[6] Mr. Ruttenberg and Paramount commenced Action No. CV-12-445268 (the “Paramount Action”) on January 31, 2012, for defamation and intentional interference with contractual relations, as Mr. Jutsun allegedly accused Mr. Ruttenberg and Paramount, on two websites, of fraudulent conduct. Mr. Jutsun filed a Statement of Defence in the Paramount action on or about February 29, 2012.

LAW

[7] Rule 25.11 of the Rules of Civil Procedure provides:

The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action;

(b) is scandalous, frivolous or vexatious, or

(c) is an abuse of the process of the court.

[8] The rule is precise. It requires pleadings to be clear, readable, and discernable and they must disclose relevant information – not evidence. A court will strike out a pleading where it is so defective and breaches so many of the applicable rules, that it would be impossible to bring the pleading into compliance with the requirements through a series of amendments. (Morin v Government of Prince Edward Island, 1989 274 (PE SCTD)).

[9] The Statement of Claim is forty-seven (47) pages in length, consisting of ninety-seven (97) paragraphs. In the action Mr. Jutsun claims $3,300,000.00 in damages. The prayer for relief at paragraph 1 advances the following claims:

(a) payment for fraudulent misrepresentation with intent to defraud in the amount of $500,000;

(b) payment for trespass and break and enter of personal and business domicile in the amount of $250,000;

(c) payment for damages incurred with respect to wrongful breach and termination of leases and wrongful eviction from personal and business premises, in the amount of $500,000;

(d) payment for loss of business due to disruption of business services, loss of customers, and wrongful eviction of business premises in the amount of $300,000;

(e) payment for damages incurred with respect to wrongful seizure and possession of personal property, personal effects and possessions and business equipment, client files and business contents in the amount of $250,000;

(f) payment for damages incurred with breach of confidentiality and tampering of highly confidential personal and business information, government documents and documents of the Crown in the amount of $500,000;

(g) payment for damages incurred with respect to seizure and tampering of personal and business mail, mail tampering and mail fraud in the amount of $500,000; and

(h) punitive damages in the amount of $500,000.

[10] Paragraphs 1 – 7 (pages 5 -11 inclusive) of the Statement of Claim describe Mr. Jutsun’s history and expertise, and basically reads like a curriculum vitae.

[11] At paragraph 6 of the Statement of Claim Mr. Jutsun recites paragraph 4.1 of the Rules of Civil Procedure and states that in the within action he is acting in the capacity of both expert and plaintiff.

[12] There are numerous paragraphs wherein Mr. Jutsun surmises about the existence or non-existence of Mr. Duffus. Mr. Jutsun provides a plethora of evidence about his surveillance and investigation into the whereabouts and/or demise of Mr. Duffus.

[13] The Statement of Claim details the history of the mortgage proceeding, the defamation action and the discussions amongst counsel and the parties in relation to those proceedings. At paragraph 16 of the Statement of Claim Mr. Jutsun pleads:

16. As a tenable solution to the impasse and to effectively prove the legitimacy and legality of Scott Duffus and the other three missing lenders with Janet Wade, Julianne Wade and Keith Bowness, Mr. Jutsun offered a Consent to Judgment in another said action for slander with Ruttenberg vs. Jutsun, referenced with court file # CV-12-445268. This Statement of Claim is in part a Counterclaim to that court file, but is submitted as an independent Statement of Claim due to the nature of expansive breadth of this claim.

[14] A counterclaim cannot be advanced separately from the Statement of Defence. Mr. Jutsun has already filed a Statement of Defence in the Paramount action. Accordingly, he is precluded from bringing the within action as a counterclaim. (Liebersbach v McArthur, 1975 566 (ONSC)).

[15] For that reason alone, the Statement of Claim is an abuse of process of the Court and should be struck.

[16] Significantly, the pleading does not disclose any cause of action against the moving defendants. It was the Buchanans who owned the property – not Mr. Jutsun. Mr. Jutsun does not appear to have any claim, save and except for the loss of his personal possessions which allegedly went missing when he was evicted from the premises. Based on the evidence on the motion, it would appear that the plaintiff’s personal claim for those items should be brought in Small Claims Court.

[17] Moreover, the Statement of Claim is replete with argument, and in some instances inflammatory language rendering the Statement of Claim scandalous. Further, not only is it replete with evidence, but it is devoid of material facts. It is verbose. It is inflammatory. It is frivolous. The Statement of Claim should therefore be struck.

[18] Our Court of Appeal struck the Statement of Claim in Lysko v Braley 2006 11846 (ON CA), [2006] O.J. No. 1137 and states at para 11:

“It includes a plethora both of evidence and of irrelevant material and fails to be concise to the point the defendants are hindered in developing a responding pleading”.

[19] Mr. Jutsun requests that this court order the moving defendants “to produce the four lenders”. He submits that to produce them would “short circuit the court process”. He alleges that the within action is truly a landmark case – to be pursued in order that mortgage lending be properly policed. Mr. Jutsun wishes to protect the public’s interest.

[20] Mr. Jutsun is attempting to use the Statement of Claim in the within action, to change principles and the law surrounding mortgage financing. His pleading is not seeking to advance a personal claim – nor is he seeking damages resulting from any alleged breach. He is seeking to do something other than that which has been pleaded.

[21] In my view, the plaintiff is attempting to use the court process to bring the judicial system into disrepute.

[22] For all of these reasons, the Statement of Claim is hereby struck in its entirety without leave to amend.

Costs

[23] The parties both agreed that an appropriate award for costs of this motion is in the amount of $2000.00. In accordance with Rule 57, costs shall follow the event. The plaintiff shall forthwith pay to the moving defendants costs fixed at $2000.00 all-inclusive.

MASTER RONNA M. BROTT

Date: June 19, 2014.