Racine v. Gursoy Flooring Corp., 2011 ABQB 44

Court of Queen ’ s Bench of Alberta Citation: Racine v. Gursoy Flooring Corp., 2011 ABQB 44 Date: 20110125 Docket: 1003 14228 Registry: Edmonton Between: Marc Jean Racine Applicant/Plaintiff - and - Gursoy Flooring Corp. and John Berk Gursoy Respondents/Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] This is an application by the Plaintiff that the Respondent Defendant John Berk Gursoy be held in contempt, and that a warrant be issued for his arrest.

As well the Applicant seeks $1,000 costs plus disbursements as against the Respondent because of the Respondent’s various attempts to evade service and his refusal to provide his financial information. [ 2 ] The Applicant has a $26,472.45 Judgment against the Respondent from the Provincial Court of Alberta issued August 17, 2010. [ 3 ] Attempts were made to personally serve the Respondent Mr. Gursoy, but he frustrated those attempts and ultimately refused

to accept service of this Application. [ 4 ] At the commencement of proceedings before me an individual rose in the Courtroom indicating that he was acting for John Berk Gursoy, who this individual advised was not available. This male individual then attempted to advance a defence on behalf of Mr. Gursoy on the merits of the Applicant’s claim, submitting that there never was a Personal Guarantee from Mr. Gursoy of the company’s debt that Applicant had enforced against Mr. Gursoy personally.

This individual submitted that the loan advanced by the Applicant was with the Corporate Defendant, not the individual Defendant, and that there should be a stay of the garnishment proceedings and the efforts to enforce the Judgment. [ 5 ] This individual also provided an Affidavit for John Berk Gursoy sworn on December 8, 2010 in support of Mr.

Gursoy’s application in the Provincial Court to open up the Default Judgment on the basis that he was extremely stressed at the time of the collapse of his business Gursoy Flooring Corp., was hospitalized as a result of stress of that business failure in July 2010, and because he had a very limited comprehension of the English language he was not able to respond to the Civil Claim that had been served upon him. [ 6 ] The Affidavit acknowledges that he did attend Court in August 2010 for the assessment in this matter, but once again indicated that he was extremely stress and depressed, that the Court appearance felt like a symbol of his failure, and that as a result of his dejection he did not understand what was said and did not understand the process essentially giving up.

Mr. Gursoy further deposes that he has a defence to the claim, and that defence is that there was no Personal Guarantee and that the money that was lent was to Gursoy Flooring Corp. and not to John Berk Gursoy personally. [ 7 ] After much discussion and argument, I began to seriously suspect that the individual who was presenting himself as Mr. Gursoy’s representative was in fact Mr. Gursoy. Upon further review, eventually this individual acknowledged that he was in fact the Respondent, but that he still wanted the relief sought and previously advanced by him on Mr. Gursoy’s behalf.

No proper explanation was offered as to why this individual would purport to be Mr. Gursoy’s counsel or representative, other than perhaps this individual was afraid that he would be taken into custody as a result of a finding of contempt, which was the motion before the Court on behalf for the Applicant Plaintiff. [ 8 ] In any event irrespective of any proceedings that Mr. Gursoy says he has taken in Provincial Court to open up the Default Judgment, Mr. Gursoy’s behaviour has been bizarre both in this Court and in the Provincial Court. In August 2010 at the assessment of this matter, Mr.

Gursoy never raised these so called defences or even objected to the Judgment against him. [ 9 ] Furthermore although Mr. Gursoy produced documentation that might allow him to open up the Default Judgment, I have determined that he has never filed these materials in Provincial Court so he has made no real efforts to open up the Default Judgment. Perhaps Mr. Gursoy is overwhelmed, confused, and of such an unstable state that he has difficulty functioning; or perhaps he is deliberately misleading the Court and delaying proceedings against him. [ 10 ] I do conclude however that Mr.

Gursoy should be given one final opportunity to advance his so called defence, so I conclude that the contempt application at this point is premature. Nevertheless Mr. Gursoy’s bizarre behaviour and the various attempts to frustrate and evade service, could also be part of a pattern of delay. [ 11 ] As such I am directing that Mr. Gursoy complete his Statutory Declaration with respect to the financial statement of debtor within the next two weeks, and that he provide a completed copy to counsel for the Applicant during that period no later than Friday, February 4, 2011.

Presumably during this two week period of time Mr. Gursoy can properly advance his claim to open up the Default Judgment against him. As I understand it, counsel has undertaken not to proceed further to enforce against Mr. Gursoy until Mr. Gursoy has had a reasonable chance to have the Default Judgment opened up in Provincial Court. [ 12 ] I am also awarding $1,000 costs plus disbursements of $75 for the process server in favour of the Applicant Plaintiff for the waste of time that counsel has had to be put through in this process. Counsel and the Applicant can renew their application for contempt if Mr.

Gursoy does not comply with my direction to complete his financial report within the next two weeks.

Heard on the 21 st day of January, 2011. Dated at the City of Edmonton, Alberta this 25 th day of January, 2011. Donald Lee J.C.Q.B.A. Appearances: Rory Ziv Weary & Ziv for the Plaintiff John Berk Gursoy Appeared on His Own Behalf