Académique Documents
Professionnel Documents
Culture Documents
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 Republic Of Bulgaria Et Al.,
Defendants
And:
Michael Kapoustin,
Respondent
And
No. S005440
Vancouver Registry
FACTUM
Comes now Michael Kapoustin the Respondent ("Respondent"), and presents this Factum for the purpose of
clarifying those facts and law that are material to establish jurisdiction of this Court over the Defendant, Republic of
Bulgaria ("Defendant") et al.. This Factum together with the affidavits and other evidence as filed are to assist in the
Court's assessment of the facts and evidence in circumstances where, as a practical matter, the Respondent/Plaintiff
finds himself is obstructed by a defendant in the exercise of a fundamental right to appear at this civil proceeding to
give evidence against employees, agencies or instrumentalities of a foreign government.
The lawful interests and rights of plaintiffs named in action No. S004040 and those of any member of the sub-class
identified in action No. S005440, are affected by the outcome hearing.
This Factum is organised as follows.
VOLUME I. BACKGROUND.....................................................................................................................................4
SECTION A ISSUES ..........................................................................................................................................................4
Chapter 1 The Problems.........................................................................................................................................4
Part I Plaintiffs Applications To Be Set................................................................................................................. ..............4
Part II Issues....................................................................................................................................................................... .4
Chapter 2 Pleadings...............................................................................................................................................5
Part I Introduction.................................................................................................................................................. .............5
Part II The Factum ........................................................................................................................................ .....................6
Part III The Originating Process ................................................................................................................................ .........6
Part IV Statements of Claim - Need to Amend.................................................................................................... ..............11
Part V Reliance - Leave To Enter Evidence.................................................................................................................... ...12
Section AIssues
[1] There exist issues before the Master in (1) conflicts of law as to proper service of notice
and documents - Hague Convention (2) conflicts of law as to proper service of notice and
documents - Class Proceedings Act (3) conflicts of law in proceeding in absentia of the
Respondent - Charter Rights (4) Plaintiffs' request to add parties and amend their
statements of claim - Generally (5) Plaintiffs' request in S005440 to add names and
addresses of sub-class members resident in the province together with those outside the
province and to amend their pleadings on the discovery of new facts (6) Respondent's s.
24(1) Charter compliant and Application for Leave to Appeal , in forma pauperis, to the
British Columbia Court of Appeal - Generally (7) Respondents s. 34(1) and 24(1) Charter
complaint against the Ministry of the Attorney General, the Attorney General and its
addition as a defendant to action S004040 - Charter Rights - (8) leave to plaintiffs to enter
evidence to show a "good arguable cause" and "prima facie case" (9) conflicts of law, the
Master to determine the applicable law, "lex loci delecti" if in conflict with "lex fori" - are
issues to be dealt with in both actions and may well give cause to this Court to adjourn
this hearing until such time as one or all of these issues are first decided after court is
more fully disposed of all the facts and particularly the time necessary to the interests of
justice.
[2] Should the Master find the Court not seized by such matters or alternatively chooses to
not exercise his discretionary powers to consider one or all of the interconnected issues,
then the Respondent has, to the best of his limited ability and knowledge prepared this
Factum and must rely on it to speak for him and to anticipate the variety of arguments
that may be raised by the learned counsel for the Defendant.
Part IIIssues
[3] The Defendant pleads as "discursive" the statements of claim, in what "can be
understood." The Respondent has no illusions as to his skills as a litigant. However, the
personal injury and permanent physical impairments to his son and mother are real
enough and what is ultimately at issue in these proceedings for all the parties will become
whether there should ultimately be substantial damages for the plaintiffs injuries, loss of
property, and long term economic damages suffered from those injuries, such as earning
capacity. The Supreme Court has made it plain, that for the latter there is such a head of
damage: Andrews et al. v. Grand & Toy (Alberta) Ltd. et al. , [1978] 2 S.C.R. 229; 19
N.R. 50; 8 A.R. 182; [1978] 1 W.W.R. 577; 83 D.L.R.(3d) 452, 469-70.
[4] If the claims against the defendants as framed in tort, say of alleged conspiracy or malice
are absent, then at the very least it is the law of negligence that must predominate and be
applied.
[5] The Respondent believes, for what its worth, that the personal injury issues now before
the Court must transcend questions of social utility for they ultimately must involve
justice. Mr. Wilbur F. Bowker, the former Dean of the Faculty of Law, University of
Alberta, and apparently a noted tort scholar, and member of the Board of the Alberta
Institute of Law Research and Reform writing in an article in (1964), 3 Alta. L. Rev. at
pp. 197-201, the learned Dean says at pages 200-201:
Chapter 2Pleadings
Part IIntroduction
[15] The applicable law and nature of facts relevant to both actions are sufficiently common to
one Factum to pursue both causes.
[16] The Factum attempts to provide as logical and ordered a display of the facts and law as it
seemed reasonable and necessary.
[17] The Factum attempts an analysis of case law and relevant facts and evidence marshalled
by plaintiffs in both actions and accompanied by a careful consideration of the historic,
legislative, theoretical and contextual development of "restricted immunity", and
jurisprudence on the subject as it has developed over the last years.
[18] The factual matrix and evidence, when examined with relevant case law appears to bring
the plaintiffs causes of action in both law suits within the ambit of sect. 4 to sect. 7 and
sect. 18 exceptions of the State Immunity Act, and therefore within the jurisdiction of this
court.
[19] The Factum deals with the plaintiffs material evidence as now before the Court in
Volumes I to III of the Respondent/Plaintiff (Kapoustin) Affidavit No. 15. Copies of this
evidence had at all times been in possession of the defendants.
[20] The evidential materials filed are relevant and objectively compelling to the issues of a
connection of the jurisdiction of British Columbia and the various claims framed in tort
and alleged breaches of contract against the Defendant Bulgaria, the Minister of Finance,
its' representatives, employees, officers, officials, and those of other agencies or
instrumentalities.
[21] A close examination of the facts will make readily apparent that the connection of the
plaintiffs claims and the defendants to the Canadian judicial system is, when examined
against the evidence, an obvious one.
[22] The plaintiffs, by necessity must rely on facts, evidence and the available case law as
displayed in this Factum. The facts and evidence support the plaintiffs collective desire to
elaborate and clarify the "discursive," if in fact they are, statements of claim.
[50] The applicant (Defendant Bulgaria) has asserted that the endorsed Writ and Statement of
Claim in both actions are discursive or difficult to understand.
[51] However, pleadings may be amended on matters arising since commencement or new
pleadings brought subsequent to the statement of claim with allegations made clearer or
in the alternative and any matter of fact or point of law amended or newly pleaded. [see:
Minnes v. Minnes (1962), 39 W.W.R. 112, 34 D.L.R. (2d) 497 (B.C.C.A.); approved in
Hunt v. Carey Canada Inc., supra; see: Bow Valley Resource Services v. Kansa General
Insurance Co. (1991), 56 B.C.L.R. (2d) 337 Chief Judge McEachern
[52] That having been said, it appears as a practical matter and as a result of counsel for the
Defendant being unable to understand the statements of claim as they are, to give leave to
the plaintiffs to make amendments and to include more for better clarity provide more
particulars in the actions for inter alia, slander or libel with malice, misrepresentation,
fraud, breach of trust, wilful default or undue influence, deceit and criminal, unlawful
imprisonment, making the pleading more in keeping with the requirement of Rule 19,
Rules of the Court.
[53] The case law places the burden on the plaintiffs, it appears therefore reasonable to request
this Court to grant the plaintiffs leave to make their amendments to their pleadings to
incorporate new facts and parties as discussed later in this Factum. After these
submissions plaintiffs intend to file an amended statements of claim and the Respondent
suggests that is the correct course. As can be seen case law and the practice of the courts
of this province assists on this point, and it is apparent that where a statement of claim or
defence as pleaded discloses no reasonable cause of action or defence because some
material averment has been omitted or because the pleading is defectively stated or
formulated, the court, while striking out the pleading, will usually not dismiss the action
or enter judgment, but will give the party leave to amend and if necessary to serve a fresh
pleading to correct or cure the defects appearing in the original pleading. Respondent
seeks such leave for the plaintiffs
[54] R. 2(2) allows the Court considerable latitude in addressing issues of this kind:
Subject to subrules (3) and (4), where there has been a failure to comply with these rules,
the court may
[58] In that reliance alone on pleadings or personal opinions of the plaintiffs or others, the
Respondent has asks the Court to give the plaintiffs leave to enter the affidavit and
documental evidence collected by the plaintiffs as filed and as now placed, with this
Factum, before the Court. The Plaintiffs have chosen to rely on these material facts as
they are and affidavits as supported by documentary evidence of the facts [see: Affidavit
No. 15 Kapoustin - Vol. I -III] as they appear to be and are related to the activities in
question, commercial or private, of the Defendant Bulgaria in or connected to British
Columbia. [See: Bushnell v. T & N plc (1992) 67 B.C.L.R. (2d) 330 at 336 and 342;
Amin Rasheed Shipping v. Kuwait Insurance Co. [1983] 2 All E.R. 884; Spiliada
Maritime Corp. v. Cansulex Ltd. [1986] 2 All E.R. 843; Valmet Paper Machinery Inc. v.
Hapag-Lloyd AG., unreported, December 23, 1996 (B.C.S.C.) at p.4; Stern v. Dove
Audio Inc., unreported, April 15, 1994 (B.C.S.C.) at p. 16; Cook v. Parcel, Mauro, Junltin
& Spaanstra, P.C. (1997), 31 B.C.L.R. (3d) 24 (C.A.); CRS Forestal v. Boise Cascade
Corporation, Vancouver Registry No. C983201, August 13, 1999 (B.C.S.C.), Sigurdson,
J; .G.W.L. Properties Ltd. v. W.R. Grace & Company - Conn. (1990), 50 B.C.L.R. (2d)
260 (C.A.); Leisure Time Distributors Ltd. v. Calzaturificio S.C.A.R.P.A. - S.P.A. (1996),
5 C.P.C. (4th) 320 (B.C.S.C.) at p. 3; J. Michael Jensen Boat Sales Ltd. v. McAfee (1997)
12 C.P.C. (4th) 210 (B.C.S.C.); Bangkok Bank of Commerce Public Co. v. City Trading
Corp. (1997), 13 C.P.C. (4th) 324 (B.C.S.C.).
[59] At issue before this Court is "jurisprudential controversy" over whether on an application
by the Defendant Bulgaria, the Court can determine on the face of the available pleadings
alone if it has jurisdiction in the present law suits, or whether evidence is required.
[60] The Respondent notes this controversy having previously arisen in a in G.W.L. Properties
Ltd. v. W.R. Grace & Co. - Conn. (1990), 50 B.C.L.R. (2d) 260 (C.A.) and its suggests
that the Court is to decide the application of the Defendant on the basis of evidence. The
British Columbia Court of Appeal at page 264 stated:
"I am not persuaded that the chambers judge erred in concluding on the evidence before
him that a good arguable case had been made out that Grace Conn. had committed a tort
within the jurisdiction of this court."
[61] Respondent notices that it has been pointed out in other cases that in G.W.L. Properties
Ltd. v. W.R. Grace & Co. - Conn. the court had before it only a writ of summons with an
endorsement, and therefore evidence was required to determine whether the action was
one which fell within Rule 13(1) such that this court could find jurisdiction.
[62] The present cases at bar have endorsed Writs that only provide a concise nature of the
claim, and may be served outside British Columbia, subject to Rule 13. It would
impossible for the plaintiffs in either law suit to rely on the Writs alone to prove to this
Court that they have a good arguable case. The Plaintiffs must and therefore have
resorted to providing the Court with evidence.
[63] In action No. S004040 the court has before it a statement of claim that is fairly detailed
and runs on for a number of pages and prepared by the Plaintiffs. The Respondent has
admitted to the Court that the allegations contained in the statement of claim, while not
brief as is so often is the case, are most likely discursive as the counsel for the Defendant
has noticed. As a result the Defendants are provided further and better particulars in the
two notices to admits, and the Court is provided the affidavit No. 15 of the plaintiff
Kapoustin totalling 51 pages, along with over 87 documentary exhibits in Volumes I - II.
[64] The applications of the Defendant and evidence of Dobreva do not traverse the plaintiffs
facts, documents or allegations of torts, breaches of contracts and criminal misconduct in
the province. Instead Dobreva and the Defendant Bulgaria are demurring and expressly
traversing some immaterial averment contained in the Dobreva affidavit when she
protests that there exits no connection between criminal proceedings against the Plaintiff
Michael Kapoustin in the Republic of Bulgaria, these are not at all alleged as a cause of
action in either of the two law suits as endorsed in the Writs or statement of claims[see
§IVbelow]. Any references in either of the two statements of claim to actions not
material, are particulars of matters in aggravation of the damages.
[65] Respondent asserts to this Court that there is no conflict among the parties as to the facts
and documents at issue, and that if there is any conflict as to the material facts at issue
between the parties it is more apparent than real and the issue of whether there is a good
arguable case that the action falls within Rule 13(1) may be determined on the basis of
the pleadings, the affidavit(s) material, or both [see: McLachlin & Taylor, British
Columbia Practice, 2d ed., (1998, Butterworths) at 13-52 to 13-54] that the conflict is
more apparent than real,
[66] Circumstances for the respondent/plaintiff and this Court are not made easier by the
incarceration of the Respondent and his reliance, driven by practical matters and
necessity, to plead and give evidence in absentia.
[70] It will become apparent, if has not already, that procedural events surrounding the two
claims have been each complicated by unusual circumstances, among them the personal
financial circumstances of plaintiffs that require them to act pro se and this
Respondent/Plaintiff (Kapoustin) to seek a declaration of indigence.
[71] The Master may again not be seized by this application. However, at the Court's
discretion and in the event that it were to be considered, the Applicant/Plaintiff then relies
on his previous application in terms of praecipe and the required affidavit he has provided
with this Factum.
[72] There is in both actions, as a practical matter one question. Is the Government of the
Republic of Bulgaria a proper party to these proceeds?
[73] From the commercial activities in evidence before the Court it can be sees that, inter alia,
the various correspondences, agreements, transactions, primary and third party contracts
had all relied on representations and agreements with institutions and officials of the
Government of the Republic of Bulgaria.
[74] It is common knowledge and not disputed by the Defendant Government that its
scientific and medical institutions had made agreements and contracts with the a number
of plaintiffs in both actions. All plaintiffs relied, as such on contracts with the Defendant's
institutions of, inter alio, the Academy of Medicine; the National Oncological Institute;
the National Centre for Infectious and Parasitic Diseases; the Infectious Diseases
Hospital of Sofia Bulgaria; and the National Centre of Radiobiology and Radiation
Protection. All are legislated divisions of the Defendant state and there officials or
directors are employees under contract and answerable to the Government of Bulgaria.
[75] The Plaintiffs' affected their commercial activities, transactions and contracts in or
connected to the province with these "alter-egos" of the Defendant Government of
Bulgaria.
[85] The Plaintiffs, Michael Kapoustin, Tracy Kapoustin and Nicholas Kapoustin by his
Guardian Ad Litem Tracy Kapoustin, are a family having at all material times maintained
their permanent residence in the Province and their claim is in the right of residents to
bring a law suit.
[87] The Plaintiffs lawsuit is brought pursuant to Rule 5(3), Rules of the Court and they have
relied on provisions of the Class Proceedings Act [RSBC 1996] c.50
[88] In this law suit the Respondent, is a member of one subclass of private and corporate
investors resident or doing business in British Columbia and whose claims are in right of
residents to bring a law suit jointly or severally on behalf of themselves or others
similarly situated.
[89] The Plaintiffs Dimitar Hristov, Borislav Marinov and Radka Petrova bring their law suit
jointly or severally on behalf of themselves or others similarly situated who are members
of that sub-class of Plaintiffs not resident in British Columbia in the right of a party to an
agreement or contract to have been completed in British Columbia.
[90] The corporate Plaintiffs LifeChoice International A.D. ("LifeChoice") and LifeChoice
BANQ1 Corporation ("BANQ1") bring their law suit on behalf of themselves and other
Plaintiffs that are members of a sub-class having entered into an agreement to exchange
depositary receipts as issued by BANQ1 with common shares of LifeChoice. The
individual agreements were to be completed at the offices of the attorneys for LifeChoice
in Vancouver, British Columbia. All members of the sub-class of plaintiffs allege that as
a result of their individual agreements they each have a common interest in certain
contracts with the Defendant Bulgaria.
Part IAffidavits
[91] The sworn affidavit(s) of one Ms. Maya Dobreva, Minister plenipotentiary & Counsel,
Bulgarian Embassy, Ottawa, Canada for the Defendant, Republic of Bulgaria.
[92] The sworn affidavit of service one Ms. Bidjeva, the Plaintiffs have not been provided a
copy of the said affidavit.
[93] The sworn affidavit of service of one Mr. Gogov, the Plaintiffs have not been provided a
copy of the said affidavit.
Chapter 1Affidavits
Sworn Affidavits of plaintiff Michael Kapoustin 1 - 14 and Affidavit 15 with Volumes I - III
Sworn Affidavit of plaintiff Mrs. Tracy Coburn Kapoustin
Sworn Affidavits of Mr. Robert Kap
Sworn Affidavits of Ms. Ada Gogova No. 1, with schedule of sub-class members and No. 2, a
statement of facts, on behalf of Plaintiffs LifeChoice et. al.
Sworn Affidavits of plaintiff and class member Mr. Dimitar Hristov, No. 1 plus exhibits attached.
Sworn Affidavit of Ms. Marianna Radulova
Sworn Affidavit of Bulgarian attorney at law Mr. Anatol Lukanov No. 1
Amicus Curae of psychologist, Dr. Margarita Vulcheva
Volume II. THE APPLICATIONS AT BAR
Argument and Analysis Ad Exitum
Part IPlaintiff/Applicant
[94] The Master is asked to consider as immediate the issue of the attempted service ex juris
of documents to the plaintiffs by the Defendant Bulgaria. It may prove, once the
Respondent's argument is heard, that the outcome of this particular controversy will, for
the time, being dispose of this Rule 65 hearing and the Defendant's Rule 13(10) and Rule
14(6) applications. The Court adjourning the main issues for a later date.
[95] The Respondent relies on Rule 65(34) to bring his Rule 13(10) and Rule 14(6)
applications before the Court together with those of the Defendant. There are a number of
other outstanding applications that the plaintiffs require the Master to as consider. These
are reviewed in the last Section of this Factum after discussions on issues of immunity,
jurisdiction simpliciter and forum non conveniens.
Part IContext
[96] The Respondent's application is pursuant to Rule 13(10) and Rule (14.6), however it is
brought in a statutory as opposed to factual context, jurisdiction simpliciter, as employed
by the Defendant. The application seeks to rely on applicable statues to obtain a
declaration under Rules 13(10) and 14(6) by this Court to set aside the Defendant's
service ex juris to the plaintiffs in Bulgaria of its Notices or other documents. Respondent
believes this should be decided first.
[97] The two initial questions arises out of these two conflicting applications, (1) did the
plaintiff have the right to serve a foreign defendant ex juris under Rule 13? (2) did the
defendant properly serve, ex juris, a party/plaintiff in a foreign state when relying on Rule
11?
[104] In Driedger on the "Construction of Statutes (3rd Ed. 1994)" and interpretation of those
statutes, Professor Sullivan restated in her work that a careful and exhaustive review of
the authorities shows the modern rule of interpretation as:
"... courts are obliged to determine the meaning of legislation in its total context, having
regard to the purpose of the legislation, the consequences of proposed interpretations, the
presumptions and special rules of interpretation, as well as admissible external aids. In
other words, the courts must consider and take into account all relevant and admissible
indicators of legislative meaning. After taking these into account, the court must then
adopt an interpretation that is appropriate. An appropriate interpretation is one that can be
justified in terms of (a) its plausibility, that is, its compliance with the legislative text; (b)
its efficacy, that is, its promotion of the legislative purpose; and (c) its acceptability, that
is, the outcome is reasonable and just." (p. 131)
[Emphasis Added - Mine]
[105] The Respondent's view is that a broader interpretation of what is "appropriate" and
"reasonable and just" does, in both the present proceedings, meet all three tests suggested
by Professor Sullivan. (1) the plaintiffs claims are plausible. (2) they comply with the
legislative purpose of the applicable acts cited and (3) any outcome in a Canadian court
will be reasonable and just for all the parties.
[109] It appears that the reasons forming the basis of the "old" common law rule are now out of
place in the "modern" context. The notion that foreign litigants should be denied or
alternatively given advantages not available to forum litigants does not sit well with the
proposition that the law that defines the character and consequences of the tort is the "lex
loci delecti".
[110] As the Respondent attempts to understand this "Modern Law" it appears that the court
takes jurisdiction not to administer local law, say in this instance Canadian law or
alternatively Bulgarian law, but for the convenience of litigants, and does so with a view
to its responding to modern mobility and the needs of a world or national economic order.
The court may choose to apply either law.
[111] The rule in conflicts of law cases and the principle justification for the rule appears to be
a preference for the "lex fori" over the "lex loci delecti"", this is being displaced in this
case by statutes designed to stream line such basic conflicts as how to serve documents
[the Hague Convention].
[112] So far as the technical distinction between right and remedy, it appears that Canadian
courts have been chipping away on the basis of the relevant policy considerations. This
seems to be particularly appropriate in the conflicts of laws field where, as stated earlier,
the purpose of substantive/procedural classification is to determine which rules will make
the machinery of the forum court, British Columbia, run smoothly as distinguished from
those determinative of the rights of both parties.
[113] Respondent has suggested and practised since the commencement of these proceedings
the principal that statues operate with greater openness and fairness in conflict of law
issues.
(o) the claim arises out of goods or merchandise sold or delivered in British
Columbia,"
[115] As to the manner of service - the Plaintiffs further relied on Rule 13(12) as enumerated in
subparagraphs (a) to (c) for adequate service of the Defendant government of Bulgaria
and other defendants in Bulgaria.
"Rule 13(12) A document may be served outside British Columbia
(c) in a state that is a contracting state under the Convention, in a manner
provided by or permitted under the Convention [see Rule 13(11) "Convention on
the Service Abroad of Judicial and Extra Judicial Documents in Civil or
Commercial Matters, signed at the Hague on November 15th, 1965" by Canada].
[116] Plaintiffs method of service to the Government of Bulgaria, as defendant, is consistent
first with provisions of the State Immunity Act, R.S., 1985, c. S-18, s.9 c.5, s.27 (the
"Immunity Act"). Plaintiffs relied on s. 9(1) subparagraphs (a) and (b) of the Act and the
Article 5 of the Convention and fact that the Central Authority of the Defendant Bulgaria
agreed to voluntarily accept the originating process:
State Immunity Act, R.S., 1985
"Procedure And Relief
9.(1) Service of an originating process on a foreign state, other than an agency of the
foreign state, may be made
(a) in any manner agreed on by the state;
(b) in accordance with any international Convention to which the state is a party;
The Convention reads:
"Article 5
The Central Authority of the State addressed shall itself serve the document or
arrange to have it served by an appropriate agency, either-
[130] According to the facts attested to by Ms. Marianna Radulova for the Plaintiffs, the
following conclusions can be drawn.
[131] The Defendant Bulgaria was served on September 7th 2000, the Plaintiffs relied on
provisions of Article 5 paragraph 2 of the Hague Convention. The Central Authority for
the Defendant Bulgaria had voluntarily accepted service in this action by receiving at its
offices the endorsed Writ and Statement of Claim as personally served by Ms. Radulova
to the agency for service of the Defendant in Bulgaria. The documents were provided in
the Bulgarian and English languages.
[132] As of October 31st 2000 all defendants named in this law suit and resident in Bulgaria
had been severed in Bulgaria and are in default of appearance.
[133] As of June 25th 2001 the Defendant R.C.M.P. Officer/Diplomatic Attaché Derek A.
Doornbos is in default of appearance.
1. That on 07 September 2000 the Ministry of Justice did voluntarily accept a true copy
of the complaint filed against the Republic of Bulgaria
Exhibit No 1 as attached hereto and made a part thereof to be admitted as a true and
correct copy of the Defendant Bulgaria Statement of Defence in response to the
Plaintiff's complaint as served by the Respondent Ministry of Justice, Republic of
Bulgaria.
Exhibit No 2 - as attached hereto and made a part thereof to be admitted as to its veracity
of the translation to the English from the Bulgarian language of the aforesaid Exhibit No
1."
[142] The Defendant Bulgaria has yet to traverse any averment therein within the time required
by the Notice (filed).
[143] On April 4th 2001 the following documents were forwarded to Court to be filed as
motions in form of praecipe as follows; (1) Form 2 (Rule 64(9)) dated April 4, 2001
asking the Registrar to accept the attached Praecipe in Form 56 and draft Order together
with the Plaintiff's Reply in Form 18 (Rule 23(1)); Form 56 (Rule 41(16.3)), dated April
4, 2001 requiring an Order from the Court to enter and accept the Plaintiff's Rule 23
Reply in response to the Statement of Defence for the Defendant Republic of Bulgaria
and provided a Form 56A (Rule 41 (16.3)) Draft Order and the Reply in Form 18 (Rule
23(1)) together with a Cover Memorandum in Form 9 (Rule 11(6.1)) in the Bulgarian and
English languages bearing the stamp and incoming Ref. No. 94-M-147/11.01.2001 of the
Documents Exchange Service of the Ministry of Justice, Central Authority; A Certificate
of Service signed by the aforesaid Ms. Radulova as dated March 5, 2001; (2) Form 2
(Rule 64(9)) dated April 4, 2001 asking the Registrar to accept the attached Praecipe in
Form 56 and draft Order together with affidavits and an attached Notice to Admit; Form
56 (Rule 41(16.3)), dated April 4, 2001 requiring an Order from the Court to accept as
true the facts and documents set out in the Plaintiff's Notice to Admit as served on the
Defendant Republic of Bulgaria on January 11, 2001; Form 56A (Rule 41(16.3)) Draft
Order and the Notice to Admit in Form 23 (Rule 31(1)) together with a Cover
Memorandum in Form 9 (Rule 11(6.1)) in the Bulgarian and English languages bearing
the stamp and incoming Ref. No. 94-M-147/11.01.2001 of the Defendant's Documents
Exchange Service at the Ministry of Justice; (3) Form 2 (Rule 64(9)) Praecipe dated April
4, 2001 asking the Registrar to accept the attached application in Form 56 and draft Order
together with affidavit ; Form 56 (Rule 41(16.3)), dated April 3, 2001 requiring an Order
from the Court pursuant to BC REGULATION 221/90 that the Applicant/Plaintiff
Michael Kapoustin, be declared indigent; Form 56A (Rule 41(16.3)) Draft Order;
Affidavit No. 2 of Michael Kapoustin, dated January 29, 2001. Copies of these are
provided in my affidavit [Kapoustin No. 15 Volume III].
[149] The Plaintiffs lawsuit is brought pursuant to Rule 5(3), Rules of the Court and they have
relied on provisions of s. 2(1), s. 6, s. 7, and s. 40 of the Class Proceedings Act [RSBC
1996] c.50 as follows:
" Plaintiff's class proceeding
2 (1) One member of a class of persons who are resident in British Columbia may
commence a proceeding in the court on behalf of the members of that class.
Subclass certification
6 (1) Despite section 4 (1), if a class includes a subclass whose members have claims that
raise common issues not shared by all the class members so that, in the opinion of the
court, the protection of the interests of the subclass members requires that they be
separately represented, the court must not certify the proceeding as a class proceeding
unless there is, in addition to the representative plaintiff for the class, a representative
plaintiff who:
(a) would fairly and adequately represent the interests of the subclass,
Chapter 4Argument
Part IPlaintiff/Applicant
[161] The Respondent asserts that the Defendant has erred in (1) when not obtaining leave for
service ex juris of its documents; (2) when relying on Rule 11, Rules of the Court in
attempting ex juris service of its documents upon plaintiffs in Bulgaria; (3) not observing
the statutory requirement of Rule 13(12), to affect service ex juris in a contracting state to
the Hague Convention according to that convention, (4) failing to observe the
declarations and reservations on the Hague Convention as made by the contracting state,
Bulgaria and: (5) not providing proper notice or service pursuant to s. 11(1), s. 15(1) and
s. 21(1) of the Class Proceedings Act, as follows:
11 (1) Unless the court otherwise orders under section 12, in a class proceeding,
(a) common issues for a class must be determined together,
(b) common issues for a subclass must be determined together, and
(c) individual issues that require the participation of individual class
members must be determined individually in accordance with sections
27 and 28.
(2) The court may give judgment in respect of the common issues and separate
judgments in respect of any other issue."
" Participation of class members
15 (1) In order to ensure the fair and adequate representation of the interests of
the class or any subclass or for any other appropriate reason, the court may, at
any time in a class proceeding, permit one or more class members to participate
in the proceeding.
(2) Participation under subsection (1) must be in the manner and on the terms,
including terms as to costs, that the court considers appropriate."
"Notice to protect interests of affected persons
21(1) At any time in a class proceeding, the court may order any party to give
notice to persons that the court considers necessary to protect the interests of any
class member or party or to ensure the fair conduct of the proceedings.
(2) Section 19(3) to (5) applies to notice given under this section"
"Notice
19(5) The court may order that notice be given to different class members by
different means."
[162] The plaintiffs seek to set aside the Defendant's ex juris service of documents upon them
on the grounds that the Rules and applicable statutes of relevant enactments have not
been met when serving, inter alia, the Bulgarian residents in class action proceeding
S005440. These Plaintiffs have not been dully summoned or served according to the
requirements of the Class Proceedings Act. As a result they have had insufficient
opportunity to be able to respond to the Defendant's Notices or retain counsel.
[163] This Respondent, although not identified by name in complaint No. S005440, was for
some reason served by the Defendant.
[179] The Respondent is forced into the uncomfortable position of anticipating the counsel for
the Defendant, a situation forced on him by his absence from the Court. Under no
circumstance can the Respondent hope to read the mind of learned counsel, yet no matter
how naive this Respondent, he must consider what replica said counsel may propose to
the Court and provide some possible answers, no matter how inappropriate the practice.
In response to possible arguments the Respondent advances the following.
[180] General - Practice - Service to addresses of record - Rule 4(Rules) - Natural defence -
Anticipation of defence required - Respondent prevented from attending to Court -
Hearing proceeding in absentia of the Respondent or any plaintiffs - A natural defence to
the Respondent's arguments may find the Defendant to rely on requirements in Rule 4
subrules (6) to (10) Rules of Court - Respondent argues his status as a ward of the state of
Bulgaria and its actions as such pre-empt any argument relying on provisions of Rule 4.
[181] The Master, in examining the court records in both actions would find the plaintiffs
provided an address for service in British Columbia at the time they filed their originating
process. That afterwards, as this Factum has reviewed in detail and the affidavit of Ms.
Radulova confirms, there were delivered to the Registrar of this court Notices for
Change of Address in both proceedings.
[182] The Defendant and its counsel were obviously aware of the new addresses for service
when attempting delivery in Bulgaria of the Appearances and Notices under Rule 65
(Rules) in both these proceedings. Afterwards, counsel for the Defendant and the
Defendant Bulgaria received notices by fax and letter again advising counsel in
Vancouver as to the proper address and methods for service of the plaintiffs in both
proceedings. It can be adduced, from the limited information available to the Respondent,
that the Defendant has attempted service to the no longer valid former address for service
provided in the originating process. Counsel for the Defendant may well attempt to rely
on such attempts as made in the province to convince this Court to place its reliance only
on provisions pursuant to Rule 11 (Rules) and not the applicable statues.
Chapter 5Evidence
Part IPlaintiff/Applicant
[187] The plaintiffs rely on the affidavits of Kapoustin, particularly Vol. 1 and II and that of Mr.
Hristov and Ms. Radulova. Reliance is also made on the affidavits of Gogova as to the
class proceeding members in S005440 and the affidavit of attorney Lukanov in S004040.
[188] The plaintiffs further rely on the copies provided in evidence (Vol. I - II) that document
the written exchanges between the plaintiffs and the Defendant.
Part IIDefendant/Respondent
[189] The Defendant Bulgaria's evidence surrounding service and attempts at service of
documents on the territory of the Republic of Bulgaria are deposed to in the sworn
affidavits of service of Mr. Veselin Dimitrov Gogov and Ms. Roumiana Bidjeva,
employees of the Defendant.
[190] The Plaintiffs have not received copies of the said affidavits of Gogov or Bidjeva and is
puzzled by their inclusion in a Rule 65 (Rules) proceeding's Chambers Index [see:
subrules 65(32)(a)]. It is asserted that, for the purposes of these proceedings, the said
affidavits are not admissible as proof of service if they do not attest to a "voluntary
acceptance" of the documents served or in the alternative are not "Certificates" in the
meaning of the Hague Convention and Declarations to it of the Republic of Bulgaria.
Part IDefendant/Applicant
[193] The first argument brought in the applications of the Defendant is that this court is
without jurisdiction to hear the plaintiffs' claim as the defendant is a foreign government
and protected by state immunity. In order for this argument to succeed, the defendant
must bring itself within the ambit of s. 3 of the State Immunity Act as previously cited
above.
[194] It is historically clear that governments and the states they represented had until recently
enjoyed "absolute immunity" from adjudication by foreign courts as implied by the
Defendant Bulgaria.
[195] In practice it was generally believed that international law required that sovereign states
should not be "embarrassed" by being subjected to the control of a foreign judiciary.
[196] The position of Counsel for the defendant is that Article 3 of the Immunity Act applies to
the case at Bar:
"3(1) Except as provided by this Act, a foreign state is immune from the jurisdiction of
any court in Canada.
"3(2) In any proceedings before a court, the court shall give effect to the immunity
conferred on a foreign state by subs. (1) notwithstanding that the state has failed to take
any step in the proceedings."
[Emphasis Added-Mine]
[197] From the applications it can be adduced that the Defendant Bulgaria asks the Court to
accept that the scope of immunity available to the Defendant before the Courts of Canada
as having remained as broad in its scope as that previously available under the "absolute
theory" of sovereign immunity.
[198] The applications suggest this Court recognise such immunity as an absolute right
conferred on the Defendant, the inference being that such absolute immunity is the
statutory intention of s. 3 of the Act.
[199] The applications do not identify authorities or authors on the subject of sovereign
immunity that might support the defence opinion that the "absolute theory" is to be the
"current theory" that requires the Court to be seized by the Defendant's alleged
immunity.
Part IIPlaintiff/Respondent
[229] Foreign states have enjoyed "absolute immunity" from domestic courts. This doctrine
had, over the years, evolved into one of "restrictive immunity" as foreign states
increasingly engaged in commercial activities.
[230] In England and the United States, as in Canada, legislation has been enacted which
codifies the modern doctrine of restrictive immunity and the courts of Canada have often
applied the test adopted by some American courts: if the impugned activity of the foreign
state is one in which a private person could engage it is not entitled to immunity.
[231] The doctrine of absolute state immunity was developed early in the history of
international law. It had as its object the preservation of the sovereignty of independent
states. It protected a foreign state from the processes of the courts of a host state, although
not from the application of the law of that host state.
[232] The concept was derived from principles of comity and reciprocity. It furthered the
interests of sovereign states by protecting them from actions initiated by citizens of the
host state. The doctrine of absolute state immunity recognised the sovereignty and
equality of nation states but at a cost to private citizens. The burden of that cost weighed
ever more heavily on private citizens as the commercial activities of nations expanded.
[233] The unfairness of this burden was recognised and the concept of state immunity was
accordingly refined to reflect commercial reality. This was accomplished by recognising
a distinction between a foreign government's public acts ( jure imperii ), which require
immunity, and private acts ( jure gestionis ), which do not. [See Emanuelli, Commentaire:
La Loi sur l'immunité des Etats (1985), 45 R. du B. 81].
[234] It might be useful for the respondent to establish before this Court the reasoning relied on
as to the common law and after having done so to delve into the specific questions posed
by the two cases presently before the bar. The Respondent asks the Court to consider first
the common law antecedents of the Canadian State Immunity Act. To this Respondent it
has become apparent that the law in this area reveals a consistent pattern of development
that appears to point to characterising a state activity only after having appreciated its
entire context. The case law on the subject suggests that rigid dichotomies between the
"nature" and "purpose" of state activity are not helpful in this analysis.
[253] During the 1970s, several countries moved to codify the common law regarding
"restrictive immunity" . The United States passed the Foreign Sovereign Immunities Act
of 1976 , the United Kingdom passed its State Immunity Act 1978 , followed by the
Canadian State Immunity Act in 1982. All these statutes provide a "personal injury" and
"commercial activity" exception to sovereign immunity. The English statute provides a
list of specific exceptions, an approach different from that prevailing in North America.
[254] The relevant provisions of the Canadian State Immunity Act as a codification are in ss. 2
to 6 and focus on the nature and character of the activity in question, just as the common
law did. In the United States, a similar model has been adopted, although the definition in
that of commercial activity is somewhat different.
[255] The United States State Department adopted a policy of restrictive immunity in the 1952
"Taft letter", it restricted the doctrine of state immunity to those acts of nations that are
governmental in nature and specifically excluded from protection those acts which are
commercial in nature.
[256] In 1976, the United States entrenched this policy by enacting the Foreign Sovereign
Immunities Act of 1976 , 28 U.S.C. (" FSIA "). Paragraph 1605 of the FSIA removes
sovereign immunity from any action undertaken with respect to " commercial activity"
which is defined in a very general way. Since 1976, the American cases dealing with state
immunity have turned on the characterization of the questioned activity of the foreign
state.
[257] The United States Foreign Sovereign Immunities Act Of 1976, Pub. L. 94-583, 90 Stat.
2891, 28 U.S.C.
" §1603. Definitions
"(d) A 'commercial activity' means either a regular course of commercial conduct or a
particular commercial transaction or act. The commercial character of an activity shall be
determined by reference to the nature of the course of conduct or particular transaction or
act, rather than by reference to its purpose.
" §1604. Immunity of a foreign state from jurisdiction
"Subject to existing international agreements to which the United States is a party at the
time of enactment of this Act a foreign state shall be immune from the jurisdiction of the
courts of the United States and of the States except as provided in ss. 1605 to 1607 of this
chapter.
" §1605. General exceptions to the jurisdictional immunity of a foreign state
"(a) A foreign state shall not be immune from the jurisdiction of courts of the United
States or of the States in any case --
"(1) explicit or implicit waver of immunity by the foreign state;
"(2) in which the action is based upon a commercial activity carried on in the United
States by the foreign state; or upon an act performed in the United States in connection
with a commercial activity of the foreign state elsewhere; or upon an act outside the
territory of the United States in connection with a commercial activity of the foreign state
elsewhere and that act causes a direct effect in the United States;"
"(3) property taken in violation of international law is at issue;
[265] It appears that the courts in the United Kingdom accepted that the concept of "restrictive
immunity" prior to legislation replacing that of "absolute immunity".
[266] United Kingdom State Immunity Act 1978, (U.K.), c. 33
Part IIICanada
Part IVConclusion
[274] With the aforesaid history and lessons in mind, the Respondent now turns to the specific
questions facing this Court in the present cases: first, what is the "nature" of the activity
in question -- i.e., do the Defendant Bulgaria's transactions and contracts with certain of
the plaintiffs in or connected to British Columbia constitute commercial activity, and
second, are the claims framed in tort - have a "purpose" that can be "related" to a
legitimate sovereign activity?
Chapter 4Assertions
[275] This question of sovereign immunity requires a close examination of the conduct of the
Defendant after having voluntarily accepted service in both Supreme Court actions. The
plaintiffs rely on the national legislation of the Republic of Bulgaria and its declarations
to the Hague Convention and the affidavit evidence.
[276] The Respondent asserts it is apparent from the extensive exchanges of documents and
correspondence among the litigants that the Defendant Bulgaria accepted service in a
manner agreed to by it and had not remained silent or idle, taking more than the needed
one "step in the proceeding before the Court". Has the Defendant therefor waived its
immunity as a result?
"State Immunity Act
Immunity Waived
4. (1) A foreign state is not immune from the jurisdiction of a court if the state
waives the immunity conferred by subsection 3(1) by submitting to the
jurisdiction of the court in accordance with subsection (2) or (4).
State submits to jurisdiction
(2) In any proceedings before a court, a foreign state submits to the jurisdiction
of the court where it
(a) explicitly submits to the jurisdiction of the court by written
agreement or otherwise either before or after the proceedings
commence;
(b) initiates the proceedings in the court; or
[292] At the crux of both actions is a proper interpretation of s. 5 of the State Immunity Act .
Plaintiffs assert several provisions of the Act to establish jurisdiction over the Republic
of Bulgaria. The Respondent concerns himself in this section with examining the
definition of "commercial activity" in s. 2, and this raises the two basic questions. First,
what is the "nature" of the activity in question ? Second, are the proceedings in this case
"related" to that activity? The two questions are, of course, interrelated, and neither can
be answered in absolute terms.
[293] Respondents asks the Court to turn to the "commercial activity" issue as particularly
relied on by the Plaintiffs in both law suits. The common law on state immunity has
established a state is not immune from the jurisdiction of Canada's courts if engaged in
commercial activity within the meaning of s. 2 of the Act.
"2. In this Act,
'commercial activity' means any particular transaction, act or conduct or any
regular course of conduct that by reason of its nature is of a commercial
character;
[294] An affirmative answer to this question would bar the Republic of Bulgaria's from its
claim of immunity.
Commercial activity
5. A foreign state is not immune from the jurisdiction of a court in any
proceedings that relate to any commercial activity of the foreign state.
[Emphasis Added - Mine]
1980-81-82-83, c. 95, s. 5.
[295] The Canadian definition of commercial activity differs from the American in that it does
not explicitly bar a consideration of the purpose of an activity as does the American
statute. Nonetheless, the Federal Court of Appeal found that a bar against the
consideration of the purpose of an activity was implicit in the Canadian version although
not explicit.
[296] According to available case law, the drafters of the Canadian Act were aware of the
particular wording of the American legislation and may have departed from it
intentionally. In not prohibiting the consideration of the purpose of an activity, the
drafters avoided an overly narrow interpretation of the definition, such as the Texas
Trading, supra. test.
[297] How then should the Canadian definition be construed? It appears to place paramount
importance on the nature of the activity. The Respondent takes the literature and case law
to infer that to identify this "nature" or "quality" of an activity, the Court should have
regard to the context in which the activity took place.
Part IIIPersonal Injury and Property damage, s. 6 of the Immunity Act Claims Framed In Tort
[320] As stated earlier, s. 3(1) of the Immunity Act confirms the general immunity of foreign
states from the jurisdiction of courts in Canada; however, it provides for exceptions from
that immunity as set out in the Immunity Act .
[321] Sect. 6 raises different from s. 5 although many of the same principal of interpretation
might be applied, and the definition in s.2 of "commercial activity" is not mutually
exclusive to s. 5. It can be seen to form a part of the s. 6(b) exception to " damage to or
loss of property" as might occur during a "commercial activity".
[322] The respondent argues, that s. 6(a) of the Act excepts the Defendant Bulgaria from
sovereign immunity because the proceedings relate to personal injury and s. 6(b) to
damage or loss of property connected to a commercial activity in British Columbia,
Section 6 reads:
"6. A foreign state is not immune from the jurisdiction of a court in any proceedings that
relate to
(a) any death or personal injury, or
(b) any damage to or loss of property that occurs in Canada.
Emphasis Added
1980-81-82-83, c. 95, s. 6."
[323] If we recall Ferguson v Arctic supra, it will be remember in that case that the court was
considering a personal injury connected to the commercial activity exception. However,
the consequences leading to an s. 6 exception carry personal consequences for the injured
party. The question becomes: Does the Immunity Act afford sovereign immunity to the
Bulgarian Government in the case of the personal injuries suffered by the Kapoustins and
Kaps in British Columbia (Action No. S004040)? If so to what extend is that injury
actionable in Canada? A further question arises. Does s. 6 only apply in situations where
the foreign state is performing private rather than public acts -- and so continues the
common law distinction between jure gestionis and jure imperii?
[324] The Immunity Act's s. 6 exceptions do not appear to exist at common law and the reasons
of La Forest, J., in the Supreme Court of Canada decision in Reference Re Canada
Labour Code and State Immunity Act (Can.) , [1992] 2 S.C.R. 50; 137 N.R. 81,
illuminated this problem at p. 73:
"I view the Canadian State Immunity Act as a codification that is intended to clarify and
continue the theory of restrictive immunity, rather than to alter its substance. The relevant
provisions of the Act , ss. 2 and 5, focus on the nature and character of the activity in
question, just as the common law did ..."
[325] Some states when confronted with the Act's s. 6 exception have applied the first sentence
of this quotation, and argue that the Act as a whole was not intended to alter the common
law and that, therefore, the excepted jurisdiction in s. 6 only applies when the bodily
injury involved results from a private act of the foreign state, and not from a public one.
[340] Action No. S004040 raises claims framed in tort that the plaintiffs allege to be criminal in
nature, and accordingly are seeking that those heads of damage be treated as criminal in
nature.
[341] Sect. 18 raises again a different exception from that of s. 5 and s. 6 as previously
discussed. However, yet again many of the same principal of interpretation might be
applied, and the definitions in s.2 of "commercial activity" and s. 5 "personal injury" or
"loss of property" are not mutually exclusive. It is only reasonable that, depending on the
"nature" or "purpose" of the act in question, may provide an interpretation that the
individual perpetrator had a criminal intent. In s. 18 of the Immunity Act this possibility
is considered and excepted:
18. This Act does not apply to criminal proceedings or proceedings in the nature of
criminal proceedings.
1980-81-82-83, c.95, s. 17
[349] The first question, then, is whether the Respondent can show, by evidence, a good
arguable case that the circumstances cited fit within Rule 13(1), and thereby defeat the
claim of state immunity and with establish jurisdiction simpliciter, both rely on "a good
arguable case" not only that the action is based on one or more contracts but also that the
Defendant has committed an actionable tort and is a party necessary to proceedings in
British Columbia.
[350] Materials as filed by the plaintiffs will determine if the Defendant's applications for
immunity will fail or succeed. The evidence must only show (1) if the Defendant
Government of Bulgaria is "engaged" in "commercial activities" somehow connected to
the plaintiffs, or (2) in the alternative show if a "personal injury" or "damage or loss to
property" was suffered by the plaintiffs and are somehow connected directly or
vicariously to the nature of the Defendant Government of Bulgaria's "commercial" or
other "private" activities, and (3) that the Defendant Bulgaria is a necessary and proper
party to these proceedings.
[351] In answering these questions posed by the immunity plea of the Defendant Bulgaria the
early difficulties of the plaintiffs to have put before this Court a body of evidence that
shows they have a good arguable case against the Defendant is apparent and requires
serious discussion by this Respondent as to the degree of "good and argue" the plaintiffs
must satisfy. How far must the Respondent and the other plaintiffs to go to meet this test?
[352] At the first stage of litigation the issue of service ex juris and immunity is a problem of
the plaintiffs and as it arises here it was addressed by the Alberta Court of Appeal in
Nova, an Alberta Corporation v. Grove (1982), 140 D.L.R. (3d) 527 (Alta. C.A.) Laycraft
J.A. at page 531:
"Where there is before the court any admissible evidence, whether direct or
circumstantial, which if believed by a properly charged jury acting reasonably, would
justify a conviction, the trial judge is not justified in directing a verdict of acquittal. It is
not the function of the trial judge to weigh the evidence, to test its quality or reliability
once a determination of its admissibility has been made. It is not for the trial judge to
draw inferences of fact from the evidence before him. These functions are for the trier of
fact, the jury."
[371] In Mezzo, at 838, Macfarlane J. had cited with approval Lord Cairns' expression of the
rule at 197 in Metropolitan Railway Co. v. Jackson (1877), 3 App. Cas. 193.
"The Judge has a certain duty to discharge, and the jurors have another and a different
duty. The Judge has to say whether any facts have been established by evidence from
which negligence may be reasonably inferred; the jurors have to say whether, from those
facts, when submitted to them, negligence ought to be inferred. It is, in my opinion, of
the greatest importance in the administration of justice that these separate functions
should be maintained, and should be maintained distinct."
[372] It appears that this narrow approach to evidence is rooted in the distinction between the
functions of the judge and the jury or trier of fact. At 844 in Mezzo McIntyre J.
commented that for a judge to consider weight or quality of evidence was to encroach on
the jury's territory and thereby exceed his function.
[373] However, as the present cases at Bar are civil cases, and the courts seem to generally
accept, at least from the case law in British Columbia, that a plaintiff can be non- suited
for a failure to call evidence on an essential ingredient of the case such that any judgment
for the plaintiff would be wrong in law.
[374] Counsel for the defendant infers that the plaintiff's case is deficient without electing
whether to call evidence. Clearly counsel does so fully aware of the court's discretion to
permit the plaintiff to re-open its case if the necessary evidence is available. Effectively
counsel for the Defendant is apparently seeks a non-suit on the basis of the weakness or
insufficiency of the pleadings or evidence and must elect not to call evidence.
[375] Rules 40(8) to (11) reflect that jurisprudence, well summarized in Surfwood Supply Ltd.
v. General Alarms Ltd., [1976] 3 W.W.R. 93 (B.C.S.C.), where McKenzie J. had sought
to apply the principle applied in criminal law to the civil context. This court approved
that approach in Funk v. Clopp (1984), 35 B.C.L.R. (2d) 222 where counsel agreed the
test to be applied was "whether there is no evidence that could reasonably satisfy a jury
that the fact sought to be proven is established." Following the enactment of the rules,
Romilly J. agreed in Hoole v. Advani (1996), 39 C.B.R. (3d) 122 (S.C.), at 125:
"the determination is not whether the evidence is sufficient to meet the standard of proof
but whether there is any evidence which addresses the legal issues in the claims before
the court."
[376] A review of the authorities persuades me that this court has not approved so narrow an
approach as Romilly J., but has preferred a test consistent with that formulated in
Monteleone, supra, for a directed verdict in a criminal case.
Part IConspiracy
[392] In S004040 Plaintiffs allege there was a conspiracy among the Defendant's
representative, employees, officials, agencies or instrumentalities to eliminate, inter alia,
the Plaintiffs' investment and interest in property connected to the exclusive right to
distribution of pharmaceutical products by the Defendant and new product technologies
for the treatment of HIV/AIDS and Cancer as delivered to the Defendant; the Plaintiffs
investment and interest in waste oil and refining technology and equipment delivered to
the Defendant; the Plaintiffs investment and interest in land, buildings , and equipment as
delivered to the Defendant and the Plaintiffs' interest in research and development results
projects, and the Defendant acting to deny Plaintiff their access to any information on the
foresaid.
[421] The affidavit(s) evidence provided the Court is the proof necessary to show, inter alia,
that the cause of action of the tort of negligent or fraudulent misrepresentation and has
the required proof of reliance by the plaintiffs on the misrepresentation by the Defendant
Bulgaria. This evidence, the Respondent, believes cannot at this time be clearer or
stronger in this regard than the evidence of third party contracts in British Columbia that
specifically set out in the contracts their reliance on the representations of the Defendant
Bulgaria's institutions and officials of the Ministry of Health and collaterally the
Ministries of Foreign Affairs and Finance.
Part IIIContracts
[422] The Respondent, on the issue of interference with contractual relations, puts forward
evidence of the existence of valid and enforceable contracts, and knowledge by the
defendants of the contract, but is there any evidence of a deliberate and direct
interference by the defendant that prevented or hindered the performance of the contract?
Yes, it only requires the Court to examine the affidavit of Mr. Hristov and attorney
Lukanov to realise that the contracts in question and the securities (depositary receipts)
were taken from and detained, by the Defendant without consent of the plaintiffs or other
lawful reason. What is more the defendants, most particularly the Defendant Government
of Bulgaria refused all requests to release the contracts or securities to their owners, the
plaintiffs.
Chapter 1Generally
[423] It is apparent that from the above and the nature of the authorities that this present
application can be adduced to be have three factors that must concern the Respondent and
that this Court must consider could be summarised on this application as follows: (1)
whether the Plaintiffs action is prima facie meritorious, or, (2) to decide if the Court has
jurisdiction simpliciter, and (3) whether it is the jurisdiction forum conveniens for the
progress of the action. Here I will discuss the former.
Part IRespondent
Chapter 2Argument
Part IRespondent
[428] The burden on the plaintiff at this stage is not to prove the case that it would be required
to prove at trial. Rather, it is to put before the court a body of evidence which would
show that it has a good arguable case. This means the plaintiff must adduce sufficient
evidence upon which, assuming it is accepted by the court, the court could reasonably
conclude on a balance of probabilities that an agreement for exclusive distributorship of
the defendant's products was terminated without reasonable notice.
[429] As indicated at the outset of this Factum, the Defendant's failure to identify in its
applications another more suitable jurisdiction and the fact that there are no parallel
proceeding in another jurisdiction have, as a result made the only substantive issue in
these applications one of jurisdiction simpliciter. If this province has jurisdiction over the
action, and there is a real and substantial connection with the province dealing with the
"fairness and justice test" then it is unlikely that the courts of any foreign jurisdiction will
be offended if this court exercises its jurisdiction over the defendants.
[433] It appears that, prior to 1977 a plaintiff was required to obtain leave in order to serve a
writ of summons ex juris. When the Supreme Court Rules were amended and Rule 13
allows the service of a writ ex juris without leave in certain circumstances. The revisions
to the rules were not intended to change the practice: Bushell v. T & N plc, supra, at
pages 335-336. The test on an application for an order to serve ex juris, should therefore
be the same as the test on an application to set aside service ex juris.
[434] Both proceeding before the Court rely on Rule 13(1) to incorporate and bring to this
jurisdiction the foreign defendants named. In the endorsed Writ of action S004040 the
Plaintiffs identify 13(1)(h), their claims framed in tort. In the endorsed Writ of Supreme
Court action S005440 the Plaintiffs identify 13(1)(g), claiming breaches of contract.
Some discussion and analysis in the applications of the relevant parts of Rule 13 is given
further on..
[435] Case law on the subject seems consistently to show that the determination whether the
action as pleaded falls under Rule 13(1)(g) of for that matter 13(1)(h) is an "intellectual
exercise not involving any discretion": Bushell v. T & N plc (1992), 67 B.C.L.R. (2d) 330
(B.C.C.A.) at p.342. Rule 13(1) is procedural only, for instance it is not enough to show
an action as pleaded falls within Rule 13(1)(g): Stern and Stern v. Dove Audio Inc. et al
(April 15, 1994) Vancouver Registry No. C930935, (B.C.S.C.). In applications under
Rule 13(10), the onus is on the plaintiffs to establish a good arguable case that the
circumstances come within Rule 13(1): G.W.L. Properties Ltd. v. W.R. Grace & Co.-
Conn (1990), 50 B.C.L.R. (2d) 260 (C.A.).
Part IPosition
[437] The Defendant has brought two applications, one for action No. S004040 and the other
for action No. S005440. Both rely, in part, on Rule 13(10). Both may be considered in the
same analysis and argument since neither application makes any distinction as to any
material fact or law that might distinguish one application from the other.
[438] The applications of the Defendant assert generally that "The jurisdiction of this
Honourable Court over the Republic of Bulgaria, with respect, does not exist, or
alternatively should be declined".
[439] Both applications raise the issues of, jurisdiction simpliciter, jurisdiction forum non
conveniens and immunity.
[440] The position of the Defendant may be summarised as relying on the State Immunity Act
to first attempt to establish a statutory exception to jurisdiction simpliciter. This can be
inferred from its applications since they do not traverse any of the facts or evidence
averred to in the statements of claim or the Notices to Admit as provided the Defendant
and its counsel.
[441] This leaves the Court with only one possibility, to operate on a pre-trial supposition that
the facts and material evidence averred to in the plaintiffs statements of claim, affidavits
and documents are true. Leaving only one question for the Court to decide in the
Defendant's applications as to be heard on the August 24th 2001. Are the law suits as
brought in the province against the Defendant Bulgaria depriving it to its sovereign right
of immunity?
Part IIApplications' Context
[442] The Defendant argument appears to heavily rely on the Court's application of the
international law doctrine of sovereign immunity, as codified in the State Immunity Act ,
S.C. 1980-81-82-83, c. 95 (now R.S.C. 1985, c. S-18) (the "Immunity Act"), the Republic
of Bulgaria claiming immunity from any civil proceedings, generally or civil proceedings
in the nature of a criminal proceeding. Counsel for the Defendant refers to s.3 of the Act,
that reads:
Sovereign State Immunity, s. 3 of the Act
"STATE IMMUNITY
3. (1) Except as provided by this Act, a foreign state is immune from the jurisdiction of
any court in Canada."
1980-81-82-83, c. 95, s. 3"
[443] Defendant, further and in the alternative, alleges that "there is no connection at all with
the province of British Columbia" and the Canadian judicial system, jurisdiction
simpliciter.
[445] Respondent relies on the case law that a test of a good arguable case can be met if the
pleadings and affidavit evidence provided by Plaintiffs are supported by evidence which
if believed would amount to a prima facie case [see: Huddart J., as she then was, in
Northland Properties v. Equitable Trust Co. (1992), 71 B.C.L.R. (2d) 124 (B.C.S.C.)].
[446] Case law suggests the burden is on the Defendant to prove jurisdiction forum non
conveniens. It is impossible for plaintiffs to argue on the issue raised by the Defendant as
to an "international tribunal" without it having been identified in the application.
However, in anticipation of argument on this issue I have addressed, hypothetically, in
this Factum the only possible claim for such an alternative forum.
[447] The issue appears to suggest jurisdiction simpliciter requires the Master to examine, in
some detail, the question of sufficiency in the plaintiffs pleadings and various affidavits
or documents placed in evidence. Respondent turns his attention now to Defendants Rule
13(10) application and the issue of jurisdiction simpliciter.
[448] In British Columbia Practice, McLachlin and Taylor, Vol.1, 2nd ed., the learned authors
discuss the different kinds of cases in which an application is made under R.13(10). It
appears there are cases where the claim falls clearly with R.13(1) and others where only
affidavit(s)material can establish that the claim falls within the rule because the writ
describes the claim in general terms without the factual specificity required to determine
the threshold jurisdictional issue. There is a third and residual category of cases in which
the claim advanced is so tenuous the court has concerns whether there is any evidence to
support the claim. The learned authors make the following comment about R.13(10):
"….if the action as pleaded, fits into one of the categories enumerated in R.13(1), that
generally puts an end to the issue of jurisdiction simpliciter (Bushnell v. T & N pic (1992)
67 BCLR (2d) 330 (CA)). There may also be facts that go to jurisdiction (eg, whether in
a claim founded on contract or a claim for alimony, the defendant has assets in British
Columbia; see R.13(1)(m), which have not been pled because they are not relevant to the
cause of action, and those facts will also have to be proved by affidavit(s)(s).
[449] Quoting again from McLachlin and Taylor (supra):
"When service ex juris is challenged under R.13(10) it is necessary for the plaintiff to
come forward and support the service ex juris upon the basis that it comes within one of
the subsections in R.13(1). The test to be applied on a motion under R.13(10) is whether
plaintiff has made out a good arguable case (p.13-52)
[450] The plaintiff's Statement of Claim, in my view, establishes a good arguable case that the
allegations pleaded, if proved, would fall within R.13(1). The defendant has not put into
evidence any material fact which seeks to controvert the substance of the plaintiff's claim.
[451] In my view, the action as pleaded plus the affidavit(s) evidence fits this case into one of
the categories enumerated in R.13, and, accordingly, jurisdiction simpliciter is
established.
Part VAnalysis
[458] The Respondent, as plaintiff was liable to supporting the service ex juris by showing he
had, "good arguable case" that was connected to the Province and coming under one or
more of the applicable subsections of Rule 13(1) [G.W.L. Properties Ltd. and Bentall
Properties Ltd. v. W.R. Grace & Company - Conn. et al (1990), 50 B.C.L.R. (2d) 260
(B.C.C.A.) at 262, 264].
[459] The standard required to establish a "good arguable case" appears to be contentious.
Some limited reliance is placed by the Respondent on the proposition in Quest Vitamin
Supplies Ltd. v. Hassam (1993), 79 B.C.L.R. (2d) 85 that affidavit evidence may not be
required and on Jan Poulsen & Co. v. Seaboard Shipping Co. (1995), 100 B.C.L.R. (2d)
(B.C.S.C.) at p.180, where the court said "... that the allegations pleaded, if proved, would
establish a prima facie case": [see also: Jeredo Investments Limited et al v. Polylinks
International Limited et al (June 19, 1995), Vancouver Registry No. C946684, B.C.S.C].
[460] Such reliance by the plaintiffs is however limited and the Respondent believes this Court
may find itself seized by the decision of the Court of Appeal in G.W.L. Properties Ltd.,
there the plaintiff was required to establish a prima facie case and so to adduce further
evidence on such an application as those presently at Bar.
[461] That having been said the Respondent has provided the Court with numerous and varied
affidavits and documents in evidence to support of the plaintiffs pleadings and meet the
burden upon them to adduce before the Court a sufficient body of evidence that shows
there is a good arguable case. The materials as filed by the Respondent and plaintiffs
establish the alleged causes of action in both law suits to be reasonable according to facts,
not opinions, beliefs or suppositions: Quest Vitamin Supplies Ltd. v. Hassam (1993), 79
B.C.L.R. (2d) 85.
[462] The defendants' in their applications do not appear to dispute the plaintiffs' right to serve
process without leave under Rule 13. As in Bushnell, supra. at 335-36, the fact of service
ex juris does not establish jurisdiction. Plaintiffs having relied in action S004040 on Rule
13(1)(h) of the Court and on Rule 13(1)(g) (Rules) in action No. S005440 to effect
service without leave in that both proceeding have some claims founded on contracts
breaches or a tort(s) committed in British Columbia and are alleged in the endorsement
on the writ defendants as having "effected tortious acts, inter alia, abuse of official
process, extortion, destruction of property, defamation and privacy within the Province,
whereby causing the Plaintiffs physical suffering, deep humiliation and financial loss"
having reasoned at the time that service ex juris was affected and that it was open to be
challenged.
[464] If an answer if found in the affirmative, the evidence must then speak to the question of
issue jurisdiction simpliciter. Do the plaintiffs commercial activities with the Defendant
Bulgaria and the economic loss or personal injuries allegedly suffered have a connection
to Canada and British Columbia? To obtain an answer requires the Master to examine the
question in the context of the facts and evidence as pleaded and placed before the Court,
and in the proceedings at Bar requires the Master to closely examine Volumes I - IV of
the plaintiffs evidence found in affidavits, documents and this Factum.
[465] Plaintiffs' arguments rely on the evidence before the Court to prove a sufficient prima
facie case to bring their claims (1) within one or several of the cited statutory exceptions
to immunity, and (2) within jurisdiction simpliciter. Respondent is of the opinion that
once the issue of immunity is settled it will as well settle the issues of jurisdiction
simpliciter.
[466] The position of the Defendant as pointed out in its application leaves a great deal to the
imagination, it make no reference to its commercial activities or that there were several
negotiations between 1991 and 1993 in British Columbia between the plaintiff Michael
Kapoustin in Action S004040 and the Defendant Bulgaria or similarly with the plaintiffs
LifeChoice et al and the Defendant Bulgaria in British Columbia.
[467] These negotiations concerned the Defendant's commercial activities and it contracting
with the plaintiffs to market the defendant's products in British Columbia and through
British Columbia to the United States, Mexico and elsewhere, are contracts that were
completed. However, the defendant fails to make mention of these contracts and does not
concedes, for the purpose of this application, that the plaintiffs have an arguable case that
there were contracts between the plaintiffs and the Defendant. The defendant simply
disputes it has any connection to British Columbia.
[468] The defendant is a company incorporated in Ontario. The defendant manufactures freezer
display and storage units at its plant in Ontario and sells the units to its customers in
Canada and in the U.S. Sometimes it also installs walk-in freezers it has manufactured.
[469] [10] The chief financial officer of the defendant deposes that "the defendant has never
carried on business in British Columbia, and in particular has never owned or operated
offices or a plant in British Columbia, nor has it ever employed anyone in British
Columbia prior and subsequent to the dealings with the plaintiff".
[470] [11] In answer to the suggestion that the defendant does not carry on business in British
Columbia, the plaintiff attaches to his affidavit(s)(s) copies of "yellow page"
advertisements from the BC Tel and Telus directories for the years 1997-1998, 1998-1999
and 1999-2000. Counsel for the plaintiff submits that the defendant ought to be registered
in British Columbia under the Company Act, R.S.B.C. 1996, c.62 as an extraprovincial
company carrying on business in British Columbia and that if it had complied with B.C.
law the plaintiff would have been able to serve the defendant's attorney in British
Columbia. However, the test for service ex juris under Rule 13(1)(m) is not whether a
person carries on business within the province. It is whether it has assets within the
province.
Part VIIIConclusions
[475] The test requiring a "real and substantial connection" to B.C. applies equally to contract
as it does to tort [Morguard Investments Ltd. v. De Savoye (1990), 52 B.C.L.R. (2d) 160
(S.C.C.) 183], and the Court has been asked to accept the test has been met and to
conclude it has jurisdiction simpliciter.
[476] The plaintiffs have met the test on an application for jurisdiction simpliciter which
appears to me to be on a review of the authorities, that on the basis of the pleadings, the
evidence, or both, there is a real and substantial connection between the court and either
the defendant or the subject matter of the litigation, and the plaintiff has made out a good
arguable case that it has a claim or cause of action which falls within one of the
categories within Rule 13(1).
[477] In Moran et al v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393, as noted in G.W.L.
Properties Ltd., supra, at 264, suggests a broader perspective be considered to ascertain
whether a real and substantial connection to this jurisdiction exists. The Court should
consider if B.C. is "substantially affected" by the defendants' activities or consequences,
and if it was likely the law of B.C. would be in the reasonable contemplation of the
parties?
[478] After consideration of the relevant factors the Court is asked to find that British Columbia
is substantially affected by the defendants' activities and their consequences. In the
circumstances, it a view of the law of British Columbia was also likely within the
reasonable contemplation of the parties. [Tolofson v. Jensen (1994), 100 B.C.L.R. (2d) 1
(S.C.C.) at 19; Moses v. Shore Boat Builders Ltd. (1993), 83 B.C.L.R. (2d) 177
(B.C.C.A.)].
[479] The Respondent is now further required to consider if B.C. is in all the circumstances an
appropriate or convenient forum for the action and to exercise a discretion under Rule 14
if it is shown that a more appropriate forum exists. [Jan Poulsen & Co. v. Seaboard
Shipping Co. (1994), 100 B.C.L.R. (2d) 175 (S.C.), applying the principles in Amchem
Products Inc. v. British Columbia (Workers' Compensation Board) (1993), 77 B.C.L.R.
(2d) 62; [1993] 3 W.W.R. 441] (S.C.C.), Sopinka J. at 72-79].
[480] The Defendant has not identified any juridical disadvantage in its applications. Accepting
for the purposes of the Respondent's arguments that this is in fact so, it cannot be argued
by the Defendant that there exits a disadvantage in the present proceeding sufficient to
displace a strong case for jurisdiction to remain in British Columbia.
[481] In Westec Aerospace Inc. v. Raytheon Aircraft Company, 19 April 1999, Vancouver
Registry No. CA025410,(C.A.), Madam Justice Rowles for the Court noted that "the law
in this jurisdiction" is now as laid down in 472900 B.C. Ltd. v. Thrifty Canada, Ltd. 18
December 1998, Vancouver Registry No. CA023129 (C.A.) as grounded upon the
decisions in The Abidin Daver, [1984] A.C. 398 and in Spiliada Maritime Corp. v.
Cansulex Ltd., [1986] 3 All E.R. 843 (H.L.).at page 859:
"The mere fact that [a party has] a juridical advantage ... cannot be decisive." Lord Goff
pointing out that an advantage to one party "will ordinarily give rise to a comparable
disadvantage to the [other party]." This Court must "consider where the case may be tried
suitably for the interests of all the parties and for the ends of justice."
[482] One way to deal with the applicant's submissions is that if the Defendant was properly
served according to Rule 13, and that appears to be the case, the only issue to be decided
is whether British Columbia is the appropriate forum. That it is overwhelmingly more
convenient and less expensive to litigate this action in British Columbia is apparent from
the affidavits of Mr. Lukanov, an attorney for the plaintiff Kapoustin in Bulgaria. British
Columbia is the "natural forum", the residence of the plaintiffs, the locus of the incidents
and the place where the injuries and damages were suffered. To require the plaintiffs to
go before an "international tribunal" as has been suggested as a remedy is difficult to
comprehend since no such tribunal exits to the plaintiffs knowledge.
[483] The determination of forum conveniens does not even arise until the plaintiff has
established the "reasonable measure of fairness and justice" standard in Bushell., it
should be conceded there exist uncertainties with respect to the applicable law of an
unidentified "international tribunal" make it difficult to do so .
[484] The question of forum non conveniens has as an authority in British Columbia, 427900
B.C. Ltd. v. Thrifty Canada Ltd. (1998), 168 D.L.R. (4th) 602, a decision of Esson, J.A.
for a five person court. The effect of Thrifty is described in this excerpt at 617:
"The Abidin Daver and the Spiliada laid to rest the insular English rule in both its original
and modified forms and mandated the radically different approach of determining which
is the more appropriate jurisdiction. Comity, which played no part in the old rule, is now
a major consideration. Parallel actions dealing with the same subject matter must now be
avoided unless the party resisting the application to stay can demonstrate possible loss of
a juridical advantage. The right of the plaintiff to sue in the court of his choice is not now
a significant factor."
[485] In Thrifty, Esson, J.A. reviewed the decision of our Court of Appeal in Avenue Properties
Ltd. v. First City Development Corp. Ltd. (1986), 7 B.C.L.R. (2d) 45 (C.A.). He
reasoned that the case was inconsistent with the present state of the law and should not be
followed. He, however, was required to consider whether the Supreme Court of Canada
in Amchem Products Inc. v. British Columbia (Workers' Compensation Board, [1993] 1
S.C.R. 897 had endorsed the correctness of the Court of Appeal's decision in Avenue
Properties. He referred, at page 622, to this passage in Amchem:
Part IPosition
[494] The Defendant Bulgaria has suggested in it applications that "applicable principles of
international law" clearly indicate "an action of this kind (to the extent it can be
understood) must be advanced before an international tribunal" in connection with the
question of forum non conveniens. The applications to not suggest the "applicable"
international law or what "international tribunal".
Chapter 3Argument
[495] If there is jurisdiction simpliciter over any of the defendants, the next question is whether
this court should decline jurisdiction and if so, in favour of what jurisdiction.
[496] In the case at hand, there can be no doubt at least about the jurisdiction of British
Columbia as having the closer connection with the action, or the natural forum, than
might an "international tribunal" for the reasons that follow.
[497] The plaintiffs in action No. S004040 are all citizens of Canada, the Republic of Bulgaria
is being rightly sued for commercial activities or other private activities in its name by its
officials, institutions and agencies or instrumentalities of the state.
[498] The questions of agreements or contracts are governed by the laws of British Columbia,
since having occurred or to be completed there. The conspiracy which led to the breach
of contracts and loss of the plaintiff's property and shares occurs under contracts
governed by British Columbia law. The only link between the plaintiff's claim and the
Bulgarian criminal proceeding against the Respondent/Plaintiff (Kapoustin) is that he had
been the key person of the LifeChoice companies and a director and shareholder in
Bulgarian subsidiary, and of course the primary target of the alleged defamation. The fact
he was arrested and prosecuted by Bulgaria on Canadian information and a request
originating from British Columbia are mitigating circumstances to the principal issues of
the law suits.
[499] In the words of Sopinka, J., in Amchem where a defendant discharges the burden of
demonstrating "... that there is another forum which is clearly more appropriate for the
trial of the action... a stay will be granted unless the plaintiff establishes special
circumstances by reason of which Justice requires that the trial takes place..." in Canada.
In assessing the existence of these special circumstances:
"Mere loss of a juridical advantage will not amount to an injustice if the court is satisfied
that substantial justice will be done in the appropriate forum."
"In the latter category, the onus is upon the plaintiff not just to satisfy the forum
conveniens test, but also to persuade the court that a reasonable measure of fairness and
justice sufficient to meet the reasonable expectations of the national and international
legal communities will be preserved if the court exercises jurisdiction. (emphasis
added)."
[502] Once the plaintiffs have passed the threshold test of establishing jurisdiction
"simpliciter", prima facie case and cause of action connected to the province, the plaintiff
bears the onus not just to satisfy the forum conveniens test, but also to persuade the court
that a reasonable measure of fairness and justice sufficient to meet the reasonable
expectations of the national and international legal communities will be preserved if the
court exercises jurisdiction: Bushell, supra.
[503] The applicable standard of fairness and justice in applications of the nature now before
the Court are enunciated by Campbell A.C.J.B.C. in Jan Poulsen & Co. v. Seaboard
Shipping Co. (1994), 100 B.C.L R. (2d) 175 (B.C.S.C.) at pages 179 to 180: In Quest
Vitamins Supplies Ltd. v. Hassam (1992), 79 B.C.L.R. (2d) 85 (S.C.), at p. 87, Boyd J.,
following Bushell, supra, succinctly sets out the test to be applied where a defendant
challenges the extra- territorial jurisdiction of the court:
"….where a defendant challenges the jurisdiction of the Court over him, the onus lies
upon the plaintiff to establish:
(a) that the action as pleaded falls within one of the categories enumerated in R.13(1) - in
other words, to establish jurisdiction simpliciter; (b) that the Courts of British Columbia
are a forum conveniens with respect to the action; and (c) that a reasonable measure of
fairness and justice sufficient to meet the reasonable expectation of the national and
international legal communities will be preserved if the Court exercises jurisdiction.
[507] In 427900 B.C. Ltd. v. Thrifty Canada Ltd. (1998), 168 D.L.R. (4th) 602 (B.C.C.A.) the
court held that where jurisdiction simpliciter is settled in the affirmative "the existence of
a more appropriate forum must be clearly established, particularly where there are no
parallel foreign proceedings".
[508] The test on this stage of whether the court should assume jurisdiction over this action was
conveniently summarized by Madame Justice Saunders J. in Mercer. She adopted the test
in Ecco Heating Products Ltd. v. J.K. Campbell & Associates Ltd. (1990), 48 B.C.L.R.
(2d) 36 (C.A.) where Mr. Justice Taylor summarized the test for determining the forum
conveniens, at p.42:
"The court must consider which forum has the most substantial connection to the parties
and the transaction. In answering that question it must review all of the factors which
connect the parties and the transaction to each jurisdiction. It must consider, among other
factors, the cost that each would impose on the parties, the presence of juridical
advantage to one party (or disadvantage to the other) and the law governing the
transaction.
[509] In Jan Poulsen & Co. v. Seaboard Shipping Co. (1995), 100 B.C.L.R. (2d) (B.C.S.C.)
175, Campbell A.C.J.S.C. adopted the finding of Donald J.A. in Marchand (Guardian Ad
Litem of) Alberta Motor Assn. Insurance Co. (1994), 89 B.C.L.R. (2d) 293, where he
considered the principles in Amchem with respect to the balancing function in
determining which forum has the "natural" or "real and substantial connection" with the
case. Donald J. observed the exercise was not simply arithmetic but involved giving
weight and significance to the various factors.
[510] Defendant's counsel's submissions are not at all specific enough to persuade the
Respondent that if the Court finds the issues of immunity and jurisdiction simpliciter to
be in the affirmative for the plaintiffs, that this is not then the forum of convenience.
[511] If the law to be applied is the "international law" suggested by counsel for the Defendant,
then it seems reasonable that it will be easier to prove that law in B.C. than it would be,
say in France. If the plaintiff must send its witness from B.C. or Bulgaria to an
"international tribunal" that will result in a cost to the plaintiff. Therefore the choice of
situs is the plaintiffs.
[512] Counsel provides no evidence to believe that the applicable law of an "international
tribunal" will be any different from that in British Columbia, so to the Respondent the
question of "forum" appears to be a neutral factor.
Part IIIArgument
[558] However, the fact that the plaintiffs may be entitled to serve the defendants because they
have pleaded a case and introduced evidence that permits them to serve defendants ex
juris does not necessarily mean that this court has jurisdiction. The question of
jurisdiction is whether, as stated in Cook v. Mauro, above, there is a real and substantial
connection between the court and either the defendants or the subject matter of the
litigation. This question should be answered in the affirmative, for there is a real and
substantial connection to British Columbia and the subject matter of the conspiracy claim
as follows.
[559] The limited partnership of Dy-Alkovin Marketing and corporation of LifeChoice
Pharmaceuticals Inc., each had their founding investors, corporation members and
associated partnerships here in British Columbia. The commercial activities and other
projects in with the Defendant Bulgaria in British Columbia, the United States and
Bulgaria evolved over time to become the raison d'etre of the incorporated and
unincorporated association of plaintiffs in both law suits partnership. British Columbia
lawyers and investment brokers were retained to secure the initial equity financing for the
projects. Although the threats of harm and attempts of extortion of the plaintiffs in British
Columbia came over the telephone from outside British Columbia and those
responsible are not in British Columbia, they were still telephone discussions that
occurred in British Columbia and threats uttered here.
[560] In contractual cases an important consideration is whether or not this court should decline
jurisdiction where the contract contains an exclusive jurisdiction clause. The "Eleftheria"
[1970] P. 94, [1969] 2 All E.R. 641 held that the burden is on the plaintiff to demonstrate
that the court should exercise its discretion not to grant a stay in the face of an exclusive
jurisdiction clause. Brandon J. said at 99:
[561] The Eleftheria was considered in Pirrana Small Car Centres Ltd. v. Rumm, Measures and
Kathcare Enterprises Ltd. (1981), 27 B.C.L.R. 292 (S.C.), (B.D. Macdonald J.) and G &
E Auto Brokers Ltd. and Ablitt v. Toyota Canada Inc. (1980), 25 B.C.L.R. 145,
(Macfarlane J.).
[562] Earlier this Factum touched briefly on the factors the Court was to give consideration of
the forum conveniens as generally determining whether or not its should decline
jurisdiction as were described in Stern v. Dove Audio Inc., [1994] B.C.J. No. 863,
Vancouver Registry No. C930935, by Low J. at p. 11. A number of factors to assist the
court in an application under R.14(6)(c) are also set out in Leisure Time Distributors Ltd.
v. Calzaturificio S.C.A.R.P.A - S.P.A.. It is clearly apparent once the test for jurisdiction
simpliciter is met the court should not decline jurisdiction unless the Defendant has made
it is clear that there is a more appropriate forum for trial of the action. The applicant
Defendant Bulgaria has not satisfied this requirement.
[563] Case law on this issue is "remarkably uniform" in various common law jurisdictions and
despite where there are differences in language used, each jurisdiction applies principles
designed to identify the most appropriate or appropriate forum for the litigation based on
factors which connect the litigation and the parties to competing "fori" and what is
generally consider the test to be applied by the courts. While the standard of proof
remains that applicable in civil cases, the authorities show that the existence of a more
appropriate forum must be clearly established to displace the forum selected by the
plaintiff. From a careful reading of the Amchem (supra) case and the other cases cited it
can reasonably be concluded that on an application under Rule 14(6)(c) the court should
consider the following factors:
[607] The Respondent again repeats his cardinal sin of anticipating counsel for the Defendant.
[608] Counsel may seek to assert and rely on an argument to this Court that its assumption of
jurisdiction would deprive his client of a juridical advantage before an international
tribunal. That would seem an unfair attempt to pre-empt the plaintiffs action here. It is
odd that the defendant would suggest to the Court that the plaintiffs commence an action
in before an "International Tribunal" and not before its own courts to seek relief
concerning relationships and allegations asserted by the plaintiffs.
[609] Mindful of such a possible submission by counsel for the Defendant that plaintiffs seek to
obtain juridical advantage, the Respondent is also mindful of his own observations in
case law that the factors involved in that analysis should not be effected by the motive of
the party in choosing the disputed jurisdiction, because it is only rational to sue in the
most advantageous place.
Part VIConclusion
[612] It is at the discretion of this Court to assume jurisdiction over these two actions if it meets
the reasonable requirements of order and fairness referred to in Morguard, supra and the
"reasonable measure of fairness and justice" articulated in Bushell. The international
scope of the distribution and sale by the Defendant of its products and what the
Respondent believes to be a reasonable and substantial connection of this action to
British Columbia based on all the forums conveniens factors should persuade the Court
that this last test has been met by the plaintiffs.
CASES NOTED
317159 B.C. Ltd. v. C.A. Boom Engineering (1985) Ltd. (5 December 1990), [Unreported]----------------------------68
Alberta Court of Appeal in Nova, an Alberta Corporation v. Grove (1982), 140 D.L.R. (3d) 527 (Alta. C.A.) Laycraft
J.A. at page 531--------------------------------------------------------------------------------------------------------------------61
Alberta. B.P.I. Resources Ltd. v. Merrill Lynch Canada Inc-------------------------------------------------------------------57
Alexander v. Rayson, [1936] 1 K.B. 169 at 178---------------------------------------------------------------------------------66
Amanat Khan v. Fredson Travel Inc. (No. 2) (1982), 36 O.R.(2d) 17--------------------------------------------------------48
Amchem Products Inc. et al. v. Workers' Compensation Board (B.C.) , [1993] 1 S.C.R. 897; 150 N.R. 321; 23
B.C.A.C. 1; 39 W.A.C. 1; 102 D.L.R.(4th) 96; 77 B.C.L.R.(2d) 62, at 89--------------------------------------------94, 99
Amin Rasheed Shipping v. Kuwait Insurance Co. [1983] 2 All E.R. 884; Spiliada Maritime Corp. v. Cansulex Ltd.
[1986] 2 All E.R. 843;------------------------------------------------------------------------------------------------------------12
Andrews et al. v. Grand & Toy (Alberta) Ltd. et al. , [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; [1978] 1 W.W.R.
577; 83 D.L.R.(3d) 452, 469-70.---------------------------------------------------------------------------------------------4, 57
Antares Shipping Corporation v. The Ship "Capricorn" (also known as the Ship "Alliance") et al, [1977] 2 S.C.R.
422 at pages 446-447-------------------------------------------------------------------------------------------------------------63
Bangkok Bank of Commerce Public Co. v. City Trading Corp. (1997), 13 C.P.C. (4th) 324 (B.C.S.C.)-----------12, 64
Bow Valley Resource Services v. Kansa General Insurance Co. (1991), 56 B.C.L.R. (2d) 337--------------------------11
Brewer v. Socialist People's Republic of Iraq (1989), 890 F.2d 97-----------------------------------------------------------46
Bushnell v. T & N plc (1992) 67 B.C.L.R. (2d) 330 at 336 and 342---------------------------------------------------------12
Bushnell v. T&N plc (1992), 67 B.C.L.R. (2d) 330 at 342; [1002] B.C.D. Civ. 3714-03 (C.A.)-------------------------19
Camco International (Canada Limited) v. Porodo (18 November 1997), Calgary 9601-08706 (Q.B.), p. 7-----------74
Canadian International Marketing Distributing Ltd. v. Nitsuko Ltd. (1990), 68 D.L.R. (4th) 318 (B.C.C.A.) at 320)37
Clack v. Arthur's Engineering Ltd., [1959] 2 Q.B. 211-------------------------------------------------------------------------66
STATUTES NOTICED
American Foreign Sovereign Immunities Act of 1976 , Pub. L. 94-583, 90 Stat. 2891, 28 U.S.C., §1603 - §1605---45
American Foreign Sovereign Immunities Act of 1976 , Pub. L. 94-583, 90 Stat. 2891, 28 U.S.C., is §1603(d)- -44, 53
Class Proceedings Act----------------------------------------------------------------------------------------------------------30, 31
Class Proceedings Act [RSBC 1996] c.50-------------------------------------------------------------------------------17, 19, 27
Class Proceedings Act [RSBC 1996] c.50:s. 15(1) and s. 21(1).--------------------------------------------------------------19
English State Immunity Act 1978 , 1978 (U.K.), c. 33-------------------------------------------------------------------------53
Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Commercial and Civil
Matters------------------------------------------------------------------------------------------------------------------------------19
Rules 13(10) and 14(6) Rules of the Court---------------------------------------------------------------------------------------37
State Immunity Act , S.C. 1980-81-82-83, c. 95 (now R.S.C. 1985, c. S-18)-----------------------------------------------75
U.K.), c.-----------------------------------------------------------------------------------------------------------------------44, 46, 53
RULES
Rule 14(7) and 14(8) Rules of the Court------------------------------------------------------------------------------------------27
AUTHORS NOTED
Driedger on the "Construction of Statutes (3rd Ed. 1994)"--------------------------------------------------------------------19
Edgar H. Ailes, Limitation of Actions and the Conflict of Laws (1933), 31 Mich. L. Rev. 474, at p. 487--------------20
Ernest G. Lorenzen, Huber's De Conflictu Legum (1919), 13 Ill. L. Rev. 375, reprinted in Ernest G. Lorenzen,
Selected Articles on the Conflict of Laws (1947), at p. 136----------------------------------------------------------------20
Ernest G. Lorenzen, Story's Commentaries on the Conflict of Laws - One Hundred Years After (1934), 48 Harv. L.
Rev. 15, reprinted in Selected Articles , supra, at p. 181--------------------------------------------------------------------20
G.L. Bladon, "Non Suit: Heads I Win, Tails I Don't Lose" (1993) 15 Advocates' Q. 425 at 436-------------------------66
H.L. Molot and M.L. Jewett, The State Immunity Act of Canada (1982), 20 Can. Y.B. Int'l. 79. At page 107--------15
K.G. Engelhart, Proof of Future Events: In support of the Simple Probability Burden of Proof (1987,) 8 The
Advocates Quarterly 163]--------------------------------------------------------------------------------------------------------57
Professor Klar Tort Law (Carswell) from p. 10----------------------------------------------------------------------------------57
S.A. Williams and A.L.C. de Mestral, An Introduction to International Law (2nd Ed. 1987), at 149-150--------------15
Storey v. Storey, [1960] 3 All E.R. 279 (C.A.), Ormerod L.J. noted at 282-------------------------------------------------66
The Law of Evidence in Civil Cases (Toronto: Butterworths, 1974)---------------------------------------------------------66
Ulrich Huber, and his essay "De conflictu legum diversarum in diversis imperiis" (1686)-------------------------------20
OTHER AUTHORITIES
Alberta Institute of Law Research and Reform writing in an article in (1964), 3 Alta. L. Rev. at pp. 197-201---------5