Form 125(rule 65) - Outline Class Respondents

FORM 125 (RULE 65) No. S005440 VANCOUVER REGISTRY IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: "LIFECHOICE INTERNATIONAL - AD", DIMITAR HRISTOV, BORISLAV MARINOV, RADKA PETROVA, LIFECHOICE BANQ1 CORPORATION On behalf of themselves and all others similarly situated PLAINTIFFS AND: THE NATIONAL SPECIALIZED INVESTIGATIVE SERVICE OF THE GOVERNMENT OF BULGARIA, THE MAIN PUBLIC PROSECUTOR’S OFFICE OF THE GOVERNMENT OF BULGARIA, THE REPUBLIC OF BULGARIA Represented by The HONOURABLE MURAVEI RADEV Minister of Finance In his official capacity For THE REPUBLIC OF BULGARIA, THE NATIONAL CENTRE FOR INFECTIOUS AND PARASITIC DISEASES And EMILIA MITKOVA AND MARIO STOYANOV DEFENDANTS AND: REPUBLIC OF BULGARIA PETITIONER AND: MICHAEL KAPOUSTIN RESPONDENT

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 Plaintiff . As a result of his indigent status 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 on self representation. The relies upon the following.

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 in the case of a class action proceeding with hundreds of named parties and potentially thousands more whose interest and legitimate rights as litigants would be as a result jeopardized.

1.5.

Rule 65 contributes further to placing the Respondent and other parties of record or interest 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.

1.6.

Further the Defendant, Republic of Bulgaria, Muravei Radev Minister Of Finance, is responsible for placing all parties of record and members of a subclass of Plaintiffs residing on the territory of the Republic of Bulgaria 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.

1.7.

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 as a class and the Respondent from the full and adequate exercise of their legal rights as litigants. The Petitioner thereby satisfying the requirement of relevant Canadian and international law.

1.8.

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 as a class 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.

1.9.

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.

1.10.

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 class action.

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1.11.

That, given adequate time by this Honorable Court, the Respondent together with other members of the class or subclasses will be able to assemble sufficient evidence of property loss, breeches of contract, personal injury and other tortious acts suffered by the class or a respective subclass in the province or outside of the province as a direct or vicarious result of the acts effected by the Defendant, Republic of Bulgaria, Muravei Radev Minister Of Finance and other.

1.12.

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 the class or a subclass having 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.

1.13.

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 would represent providing notice of motion to all known and some form of effective notice to unknown members of the class or a subclass resident in the province, the United States and on the territory of the Republic of Bulgaria. Petitioner allowing a period that should have been, but is observably at this time not, sufficient to permit an opportunity for all the parties of record or those interested in the outcome of any hearing to have an opportunity to respond and marshal their relevant facts to oppose or to alternative consent to the application of the Defendant, Republic of Bulgaria. Muravei Radev Minister Of Finance, for the relief sought. In so doing the Petitioner would permit organizing the attendance of all the litigants at the hearing.

1.14.

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..

1.15.

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.

1.16.

Respectfully this Honorable Court is asked to recall that the observable international character of this proceeding and significant number of Plaintiffs as a class imposed certain responsibilities upon all the parties of record 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.

1.17.

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.

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1.18.

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.

1.19.

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.

1.20.

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.

1.21.

Jurisdiction of this Honorable Court is proper as it will be able to provide an equitable venue for review of the Plaintiffs complaint as a class or as separate subclasses. Allowing the facts as they are to fall where they will when assessing the materials brought before it.

1.22.

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”.

1.23.

Plaintiffs have claimed as a class 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 of 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.

1.24.

Original jurisdiction of this Honorable Courts is proper since the immunity claimed is without merit.

1.25.

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 individual and corporate 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 a class group as to why the relief they seek from the Defendants is just.

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1.26.

2.

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 effected in the province, inter alia, its residents; their property rights and those of others; contractual rights and commercial activities in the province.

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.

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 has further failed to consider that provisions of s. 6(2) of the Class Proceedings Act, R.S.B.C. 1996, c.50, subrule 5(3) Rules of the Court together with s. 40 and s. 27(4) , s. 11(2), s. 12 and s. 27(2) of the Act.

2.7.

The Petitioner having overlooked the obvious requirements under the Class Proceedings Act imposed upon the Defendant, Republic of Bulgaria, Muravei Radev, Minister Of Finance, requiring that it notify not only the Respondent and those parties of record appearing on the originating process, but also all those members of the class who are part of a subclass or alternatively citizens of British Columbia residing outside of Canada and are all collectively lawful resource users.

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2.8.

The Petitioner’s motion for relief is being sought without first having providing proper and sufficient notice and adequate time to all members of the class or subclasses. The Petitioner denies these litigants their right to due process and the exercise of their legal rights as litigants; in that neither the individual plaintiffs identified or those class members still to be ascertained are able to respond, attend or otherwise comply with the Rules of the Court within the times fixed therein. His or her Honor mindful that there are constraints imposed by the number of known individual plaintiffs and those not yet established who are members of the class and the realities of service to and from a foreign state.

2.9.

Furthermore the 90 day period for Plaintiffs to file a request for certification of the above entitled proceeding as a class proceeding has not yet expired. It effectively having commenced upon the filing with this Honorable Court of an appearance on February 28th 2001 by the Defendant, Republic of Bulgaria, Muravei Radev, Minister Of Finance.

2.10.

Respondent respectively submits that it is unreasonable to consider the relief requested prior to this Honorable Court first considering if the above entitled proceeding is to be qualified under the Class Proceedings Act. If so then determining which of the Plaintiffs is entitled to proceed on behalf of all members of the class or subclasses. This Honorable Court required to appoint a member of the class or subclasses to represent the interests of each respective member.

2.11.

The Honorable Court is requested to consider that the limitations of time imposed upon the Respondents has made impossible for all the material facts and circumstances in existence under the instance to be set out here.

2.12.

The above entitled 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.

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 to be filed.

3.7.

Statement of Defense as provided on behalf of Defendant, Republic of Bulgaria, by its Respondent Ministry of Justice

3.8.

Notices to Admit as to facts and documents as to be filed

3.9.

Such further and other materials as this Honorable Court may permit.

Dated: March 19, 2001 /opt/pdfcoke/conversion/tmp/scratch8/21517098.doc08/29/09Created by M. Kapoustin

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Michael Kapoustin pro se Plaintiff

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