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FORM 125 (RULE 65)

Dated: March 19th 2001 No. S004040


VANCOUVER REGISTRY

IN THE SUPREME COURT OF BRITISH COLUMBIA


BETWEEN:

TRACY KAPOUSTIN, NICHOLAS KAPOUSTIN BY HIS GUARDIAN AD LITEM


TRACY KAPOUSTIN AND MICHAEL KAPOUSTIN
PLAINTIFFS
AND:
THE HONOURABLE MURAVEI RADEV
MINISTER OF FINANCE
IN HIS OFFICIAL CAPACITY
FOR
REPUBLIC OF BULGARIA,
DEFENDANT
and
STEFCHO GEORGIEV, MARIO STOYANOV, EMILIA MITKOVA, KINA DIMITROVA,
IVETA ANADOLSKA, DIMITAR SHACKLE and
DEREK A. DOORNBOS,
INDIVIDUAL DEFENDANTS

AND:

REPUBLIC OF BULGARIA
Muravei Radev
Minister Of Finance

PETITIONERS
AND:
MICHAEL KAPOUSTIN et al.

RESPONDENTS

OUTLINE

PART II

1. Position of Respondent:
1.1. The outline is provided this Honorable Court is to the best of limited time and
abilities of the Respondents as pro se Plaintiffs . As a result of their indigent status
and the Plaintiff Kapoustin being incarcerated pending final sentence, it is
required Respondent represent himself in the above entitled proceeding. It is
pleaded to this Honorable Court and the presiding Judge to be patient with the
awkwardness inherent when a lay person, by his or her circumstances, is required
to rely, as is this Respondent, on self representation. The following is relied upon.
1.2. That there exists at this time no objective possibility for fair or full hearing on the
subject matter of the relief applied for by the Petitioner. The Respondent and other
parties of record are presently under a legal disability.

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1.3. It is submitted to this Honorable Court’s consideration that the granting, at this
time, of Petitioner’s motion for a hearing would deny the Respondents, as lawful
resource users, their right to due process and the exercise of their legal rights as
litigants in the province. The rendering of justice becomes doubtful as a result.
1.4. Petitioner’s dependence on Rule 65, Rules of the Court, is inappropriate and
contributes further to placing Respondents under a legal disability. Reliance on
this chambers pilot project is not proper as it does not provide all the Plaintiffs or
interested party as intervener an adequate forum for a full display of the facts
necessary for a fair and comprehensive hearing of the controversy at issue or those
required to proceed on hearing on a complex point of international and national
law.

1.5. Further the Defendant, Republic of Bulgaria, Muravei Radev Minister Of Finance,
is responsible for placing all parties of record and the Respondents under a legal
disability. This arises from a written direction to officials of the Defendant’s
Central Authority, the Ministry of Justice, that in matters pertaining only to the
Plaintiffs, its officials are not to observe their national law or the relevant
enactment for service of foreign judicial or extrajudicial documents on the
territory of the Republic of Bulgaria.
1.6. This Honorable Court should not grant any relief sought by the Petitioner while
the Defendant, Republic of Bulgaria, Muravei Radev Minister Of Finance,
knowingly persists in violating provisions of the Defendant’s national law and
relevant international treaties. Defendant, Republic of Bulgaria, Muravei Radev
Minister Of Finance should first remove any cause and end whatever conduct of
those officials of its agencies or instrumentalities who are responsible for
obstructing the Plaintiffs and the Respondents from the full and adequate exercise
of their legal rights as litigants. The Petitioner thereby satisfying the requirement
of relevant Canadian and international law.
1.7. That it is impossible, in the time fixed by provisions of subrule 65(13), Rules of
the Court, as relied upon by the Petitioner, to fully and fairly lay before this
Honorable Court all the information necessary to enable it a proper assessment of
Plaintiffs claims that this Honorable Courts jurisdiction is proper and just over the
Defendant, Republic of Bulgaria, Muravei Radev, Minister Of Finance in the
above entitled proceeding.
1.8. That further, the time fixed and relied upon by the Petitioner does not provide
Respondents sufficient opportunity to submit adequate evidence to this Honorable
Court to permit it an objective assessment of why the request for immunity by
Defendant, Republic of Bulgaria, Muravei Radev Minister Of Finance, is without
legal merit.
1.9. That the alternative relief requested by the Defendant, Republic of Bulgaria,
Muravei Radev Minister Of Finance, to have this Honorable Court decline its
jurisdiction is further without legal cause or factual merit. The material facts and
documents available overwhelmingly support both the principle of original or
alternatively supplemental jurisdiction of this Honorable Court over the
controversy in that the above entitled action.
1.10. That, given adequate time by this Honorable Court, Respondents are able to
assemble sufficient evidence of property loss, breeches of contract, personal injury
and other tortious acts suffered in the province as a direct or vicarious result of the
Defendant, Republic of Bulgaria, Muravei Radev Minister Of Finance.
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1.11. Are that the material facts document a clear connection observably flowing from
acts of the Defendant, Republic of Bulgaria. Muravei Radev Minister Of Finance,
into and demonstrably in connection with residents and property rights in the
province. Such facts are consistent and sufficient for jurisdictional requirements as
to permit a claim for relief, in personam, with respect to which a foreign state is
not entitled to immunity.
1.12. That the Petitioner is required to provide proper notice and adequate time this,
sine quo non, a right of all parties of record and those known to have a legal
interest in the above entitled proceeding. This period should have been, but is
observably at this time not, sufficient to permit an opportunity for all the parties of
record to marshal relevant facts and law to oppose the application of the
Defendant, Republic of Bulgaria. Muravei Radev Minister Of Finance or to
permit organizing the attendance of all the litigants at the hearing.
1.13. The observable fact is that the Respondents’ representative and numerous other
parties of record are presently outside of Canada. His or Her Honor mindful of the
geographic distances, languages as well as the physical and legal constraints
obstructing the Respondents ability to comply with the time fixed by Rule 65,
Rules of the Court..
1.14. Is to respectfully submit that the application for the relief sought by the Petitioner
be set aside for a period of time to be determined by this Honorable Court.
Mindful that there is no obvious question of urgency which represents a relevant
factor in the Defendant, Republic of Bulgaria, Muravei Radev Minister Of
Finance refusing to consent to extending the time under Rule 65 or for directing
officials of its Central Authority to violate international treaties and local rules for
service of foreign judicial or extrajudicial documents on the territory of the
Republic of Bulgaria.
1.15. Respectfully this Honorable Court is asked to recall that the observable
international character of this proceeding imposed certain responsibilities upon the
parties to exercise a special due diligence and care in insuring that the rights of all
litigants or interested parties in and outside the province or Canada are clearly
observed. Each party of record responsible to making best efforts in preserving the
principle of equality at arms before this Honorable Court.
1.16. As a result of the aforestated it is respectfully submitted as just and convenient for
this Honorable Court to dispense with Rule 65, this rules application inappropriate
for the above entitled proceeding in that there exist numerous parties of record and
complex factual and legal matrixes that are best resolved through a process of
discovery and finally trial.
1.17. Alternatively should the Honorable Court proceed to a hearing despite the
Respondents previous observations and objections the relief sought by the
Defendant, Muravei Radev, Minister Of Finance should still not be granted on the
grounds set out as follows.
1.18. The Petitioner’s application has erred with respect to advancing the argument that
this Honorable Court has no jurisdiction over the Defendant, Republic of Bulgaria,
Muravei Radev, Minister Of Finance.

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1.19. Petitioner is forgetful of Charter principles and the inherent jurisdiction of this
Honorable Court to modify of extend common law in order to comply with
prevailing social conditions and values. Recent developments in common law and
new principles of international law are regularly witnessing sovereign right
subordinated to the individual right of private claimants to seek relief in
personam in a jurisdiction other than the courts of a defendant state.
1.20. Jurisdiction of this Honorable Court is proper as it will be able to provide an
equitable venue for review of the Plaintiffs complaint. Allowing the facts as they
are to fall where they will when assessing the materials brought before it.
1.21. The relief sought by the Defendant, Republic of Bulgaria, Muravei Radev
Minister Of Finance is made more unreasonable since it requires that this
Honorable Court overlook provisions of an enactment of Canada which provide
for jurisdiction of a Canadian court over a foreign state when the act or conduct of
that foreign state are reasonably alleged as conforming to the principle that they
are activities which are more appropriately termed “de jure gestionis” and not
legitimate governmental actions immune from civil or criminal prosecution, “de
jure imperii”.
1.22. Plaintiffs have claimed and will prove at trial, given sufficient time, that the
Defendant, Republic of Bulgaria, Muravei Radev Minister Of Finance, was
involved with residents of the province or property in or connected to the
province. The activities which are the subject of the controversy are of a kind as
carried on by private persons and therefore the Defendant, Muravei Radev,
Minister Of Finance, not entitled to seek immunity.
1.23. Original jurisdiction of this Honorable Courts is proper since the immunity
claimed is without merit.
1.24. A further requirement of the Defendant, Republic of Bulgaria, Muravei Radev
Minister Of Finance, that this Honorable Court decline jurisdiction over a
controversy that is documented to have occurred in or is alternatively directly or
vicariously connected to property rights in the province and its residents is to deny
this Honorable Courts obligations and responsibilities to citizens of the province
and Canada to provide a judicial forum in which to voice their grievances and seek
a hearing of their claims as to why the relief they seek from the Defendants is
just.
1.25. The Petitioner has failed to recall that the restrictive theory of sovereign immunity
is ceded when the foreign state directly engages in commercial activities in or
connected to the province. This is documented to be the present case of the
Defendant, Republic of Bulgaria, Muravei Radev Minister Of Finance. The
subject of the controversy at issue are breeches of contract and torts that flow
directly into the jurisdiction of this Honorable Court and Canada. The Defendant,
Muravei Radev, Minister Of Finance, having acted directly or through Canadian
resident agents or officials to effect acts in the province or elsewhere in and
outside of Canada,. The acts in question effecting in the province, inter alia, its
residents; property rights; contractual rights and commercial activities in the
province.
2. Basis For Opposing Relief:
2.1. The Petitioner’s conclusion does not flow as clearly as the application for the
relief sought would have this Honorable Court believe.

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2.2. It is apparent that the reasoning of the Petitioner is narrow and highly selective
when engaging this Honorable Court to consider the matter of its jurisdiction over
a foreign state. The Petitioner’s reasoning fails to recall Section 4(1)(2)(a) of the
State Immunity Act, R.S.C. 1985, c. S-18 (the “Act”), the Defendant, Republic of
Bulgaria, Respondent Ministry of Justice, having already admitted as fact before
this Honorable Court to having waived the immunity conferred by ss 3(1) of the
Act.
2.3. In the alternative the Petitioners reliance on the Act requires that this Honorable
Court find in favor of the Plaintiffs conclusion, being that for claims in personam
and in rem jurisdiction of a provincial court is proper. Plaintiffs claims clearly
flow, independently, from ss 5, ss 6 and ss 7 of the Act, subrules 13(1)(g) and (h),
Rules of the Court.
2.4. Further and in the alternative the Petitioner’s conclusion falls short, it fails to
setout before this Honorable Court that ss 17 and ss 18 of the Act clearly identifies
that the Act is not to be construed as negating the original or alternatively
supplemental jurisdiction of a provincial court or its rules.
2.5. Furthermore the Act does not apply to civil proceeding conducted in the nature of
a criminal proceedings. The Plaintiffs seek, in part of their claim, to obtain relief
for personal injury and losses suffered as a result of tortious acts of the Defendant,
Republic of Bulgaria, Muravei Radev, Minister Of Finance and others. It is
claimed by the Plaintiffs that the conduct alleged has the genus of S. 188, S.
346.1(1) , S. 426(1)(a)(ii) and (1)(b) of the Criminal Code of Canada.
2.6. The Petitioner is apparently, by his own admission, unable to understand
the Plaintiffs claim and is as a result further unaware that personal injury
suffered is claimed, in part, to be as a result of breeches by Defendant,
Republic of Bulgaria, Muravei Radev, Minister Of Finance with other of S.
15(h), S. 22, S. 30 and S. 28 of the Privacy Act, R.S.B.C. 1986 c. 165 and
S. 8(1) R.S.C. 1985, violations which are properly heard within the
jurisdiction of a provincial court.
2.7. The Honorable Court is requested to consider that the limitations of time
imposed upon the Respondents have made impossible for all the material
facts and circumstances in existence under the instance to be set out here.
The above entiled proceeding before this Honorable Court supports a
number of alternative hypothesizes embodied in relevant provisions of
applicable Canadian and international law, with enactments and treaties to
which the Defendant, Republic of Bulgaria Muravei Radev, Minister Of
Finance and Canada are parties. That further there are issues of relevant
national law or enactments of the Republic of Bulgaria which must be
incorporated and relied upon by the Respondents before this Honorable
Court can fairly and fully weight the facts.

3. Materials To Be Relied On:


3.1. Affidavits Of Anatol Lukanov as to be filed
3.2. Affidavits of Ada Gogova as to be filed
3.3. Affidavits of Robert Kap as filed and to be filed.

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3.4. Affidavits of Michael Kapoustin as filed and to be filed.
3.5. Affidavits of Robert Stewart as filed and to be filed
3.6. Plaintiffs Statement of Claim as filed and to be amended.
3.7. Statement of Defense as filed on behalf of Defendant, Republic of Bulgaria, by its
Respondent Ministry of Justice.
3.8. Plaintiffs rely to answer of the Defendant, Republic of Bulgaria, as filed.
3.9. Notices to Admit as to facts and documents as filed and to be filed
3.10. Such further and other materials as this Honorable Court mat permit.

Dated: March 19, 2001 ________________________


Michael Kapoustin
pro se Plaintiff

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