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Court of Appeal File No.

___________ 
Court of Appeal Registry Vancouver
Supreme Court File NO. S004040
Supreme Court Registry Vancouver
Affidavit No. 16
Michael Kapoustin
In the British Columbia of Appeal Court
(The Supreme Court of British Columbia)
Between
MICHAEL KAPOUSTIN et al
Appellants
(Plaintiffs)
And
REPUBLIC OF BULGARIA et al
Respondents
(Defendants)
And
Supreme Court File NO. S005440
Supreme Court Registry Vancouver

In the British Columbia of Appeal Court
(The Supreme Court of British Columbia)
Between
Michael Kapoustin and LifeChoice International A.D. et al,
and
other similarly situated
Appellants
(Plaintiffs)
And
REPUBLIC OF BULGARIA et al
Respondents
(Defendants)

AFFIDAVIT
PART II
STATEMENT OF FACT TO AFFIDAVIT No. 16
Factual Matters

12. On December 29, 2000 at 10:41 P.M. Bulgarian time I had sent by fax documents to the
Supreme Court of British Columbia (SCBC) Registrar under case No S004040 as follows.

13. Praecipe Form 2 (Rule 64(9)) signed asking the Registrar to accept by fax and file the
December 7th 2001 Appearance and Defence of the Defendant Bulgaria as provided me by the
Government of the Republic of Bulgaria, Ministry of Justice.

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14. A certified translation from the Bulgarian language of the said December 7, 2000 Statement
of Defence by the Respondent Ministry of Justice, Republic of Bulgaria;

15. A copy of the Statement of Defence in the Bulgarian language as sent to me on December 11th
2000;

16. Praecipe Form (2) (Rule 64(9)) asking the Registrar to accept by fax and file a Notice of
Change of Address;

17. A Notice of Change of Address for Service for the plaintiffs in S004040.

18. On or about January 2, 2001I was advised by a clerk at the SCBC Registry one Mr. John
Williamson, that there were some deficiencies and he gave me his phone fax number so that I
could contact him directly and receive information and explanations on certain procedural
issues, in order to make sure how to proceed further.

19. On or about January 4, 2001 I had Ms. Radoulova get in touch by phone with Mr. Williamson
who advised me that for the time being he would accept the documents faxed but I should
send hard copies by registered mail, which we promised to do and did.

20. On January 5, 2001 at 11:43 P.M. Bulgarian time I had sent by fax a letter of thanks to Mr.
Williamson for his kindness and re-assured him in writing that at the beginning of next week I
would send the original documents by registered mail. I also had Ms. Radoulova advise him
of the circumstance of my family and their inability to retain a legal counsel, which was the
reason I had to prepare all the documents under the case by myself. I provided him the contact
numbers for my father, Mr. Robert Kap and the addresses and phone numbers for contacting
my interpreter Ms. Radoulova..

21. On January 8, 2001 at 8:56 PM Bulgarian time I sent by fax to the Registrar a draft Praecipe
for default judgement and an affidavit, which my friend and agent Mr. Robert Stewart was
going to swear out under case No S004040 and asked what deficiencies Mr. Williamson had
found in the previous applications for default judgement as had been filed by Mr. Stewart for
me.

22. On January 10, 2001 from 8:59 to 9:15 PM I sent by fax to the Registrar for the attention of
Mr. Williamson a copy of my Reply under case No S004040 to the December 7, 2000
Statement of Defence of the Defendant Bulgaria as served on me by the Respondent Ministry
of Justice, Republic of Bulgaria. I advised him that the originals would follow by registered
mail.

23. On January 13, 2001 I sent by registered mail return receipt No 4408 to the SCBC Registrar
for the attention of Mr. John Williamson the documents referenced above. As sent previously
by fax to the SCBC Registrar on December 29, 2000 under case No S004040. I have not
receive the return receipt for proof of delivery.

24. On January 21, 2001 I was advised by my father Mr. Robert Kap that he had received a letter
from the Court. He re-sent that letter to me and it came to my attention that one Mr. Brent
Messenger, Manager Civil programs, Vancouver Law Courts had advised me through my
father that they had received documents from him, which had been filed, except for the
praecipe requesting issuance of a desk order [interlocutory] for default of appearance of all
the defendants identified in S004040 with the exception of the defendants Bulgaria and
R.C.M.P. Officer Derek A. Doornbos. The former having provided me a defence, and the
latter not yet served. Mr. Messenger advised that a filing fee of $62.00 was to be paid. Also
Mr. Messenger advised me that he was also returning the documents sent earlier by me
through fax since there were no provisions of the SCBC Rules to accept faxed documents.

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Since the case is very complicated Mr. Messenger suggested that I seek assistance from a
lawyer. His opinion was that a desk order application was not appropriate and that all future
applications should be spoken to by a legal representative.

25. On January 22, 2001 at 9:01 PM I sent by fax a response to Mr. Messenger's January 11, 2001
letter thanking for his attention and explaining that my circumstances required me to act pro
se and act only in absentia in writing.

26. On January 24, 2001 Mr. Messenger sent his reply by e-mail answering my questions and
giving the phone of Neighbourhood Law Clinic and the phone and fax number of the
Salvation Army and Legal Aid as well.

27. On January 25, 2001 Mr. Messenger sent electronic copies of the forms for application for
indigence.

28. On February 28, 2001 at 11:00 PM Bulgarian time I sent by fax a February 26 letter to Mr.
Patrick Lewis, legal counsel for the Defendant Republic of Bulgaria concerning methods of
service of documents, advising him that the parties should rely on the provisions of S.C.B.C.
Rule 13(12) (b) and (c) due to the declarations and reservations made by his client, Republic
of Bulgaria on Articles 10; 16 §§1 and 2 and Article 8 §2 of the Hague Convention on Service
Abroad of Judicial and Extra-Judicial Documents under Civil or Commercial Matters.
Alternatively, relying on Rule 41(15) of the Court, if his client agreed to a Consent Order to
comply with the relevant Convention articles or to an extension of 40 days to the periods
fixed by rule or order for serving, delivering, filing or amending any document under the case
S004040, in which instance both parties would voluntarily accept service.

29. I received on or about March 5, 2001 an unsigned response from Mr. Lewis to me c/o
Marianna Radoulova advising that counsel had instructions to take no other steps in these
lawsuits other than to apply to Court. I myself have not received by fax the said letter.

30. On March 9, 2001 I wrote to Mr. Lewis concerning case No S004040, expressing me fears
that my communication to the SCBC might be limited or otherwise controlled by his client,
concerning the involuntary service attempted by Defendant Republic of Bulgaria and
discussion upon the issue whether the Defendant could rely on State immunity. The letter was
sent by registered mail return receipt No 74 on March 20, 2001 and according to the stamp on
the return receipt it was received at the offices of counsel, Sugden McFee and Roos, on April
2nd. The return receipt was received back on April 10th. The said letter was faxed to the
offices of Mr . Lewis on March 12, 2001 at 8:30 P.M. Bulgarian time.

31. On March 12, 2001 I was called before one Mr. Gogov, an officer at the Sofia Central
Penitentiary who served documents to me as sent them by counsel for the Defendant Attorney
Lewis. I was provided the documents against my will and under protest as follows.

32. February 23, 2001 letter of Attorney P. Lewis to Mr. Kapoustin case No. S004040;

33. Notice of Motion dated February 23, 2001 that an application will be made by the Defendant,
Republic of Bulgaria for an Order that the Honourable Court has no jurisdiction over the
Republic of Bulgaria or declining jurisdiction over Republic of Bulgaria case No. S004040;

34. Outline Part I of the Defendant, Republic of Bulgaria dated February 23, 2001, case No.
S004040

35. Appearance on behalf of Republic of Bulgaria, signed by Mr. Patrick Lewis, dated February
8, 2001, bearing the stamp of the Court Registry, case No. S004040;

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36. Affidavit of Ms. Maya Dobreva dated 23 February, 2001, sworn, case No. S004040

37. February 23, 2001 letter of Attorney P. Lewis to the Plaintiffs under case S005440

38. Notice of Motion dated February 23, 2001 that an application will be made by the Defendant,
Republic of Bulgaria for an Order that the Honourable Court has no jurisdiction over the
Republic of Bulgaria or declining jurisdiction over Republic of Bulgaria case No. S005440;

39. Outline Part I of the Defendant, Republic of Bulgaria dated February 23, 2001, case No.
S005440;

40. Affidavit of Ms. Maya Dobreva dated 23 February, 2001, sworn, case No. S005440

41. Appearance on behalf of Republic of Bulgaria, signed by Mr. Patrick Lewis, dated February
15, 2001, bearing the stamp of the Court Registry, case No. S005440;

42. I advised, after taking the documents under protest, that the Defendant Bulgaria had been
served by the plaintiffs in the proper way according to the requirements of the Hague
Convention and State Immunity Act , and that service to me should be made according to the
same Convention.

43. I had translated into Bulgarian language my words and they were entered into the written
Protocol prepared by Mr. Gogov and signed by him, one witness - a social worker at the Sofia
Central Penitentiary whose name I am not aware was present together with my interpreter Ms.
Radoulova. I was not provided a copy of the said protocol as signed or that of the affidavits of
service of Mr. Gogov as were to be submitted in chambers on a hearing of the Defendant
Bulgaria's applications fixed for August 24th 2001.

44. On March 29, 2001 I received Mr. Lewis' response acknowledging receipt of my message as
referenced above and counsel asked me to let him know whether I intended to have anyone
present to speak on my behalf in order to assess how long the hearing would take and to
reserve a specific date with the scheduling authority of the Court. I advised counsel that, as a
practical matter, his client refused my requests to conduct me in custody to and from any
hearings he might fix and since my financial circumstances pre-empted retaining counsel and
the health of my family was very poor, well I was left to my own wits and resources.

45. On April 4, 2001 I sent by DHL courier (way bill 473 6549 893) to the Supreme Court of
British Columbia, the Registrar for the attention of Mr. John Williamson three sets of
documents to be filed and stamped by the Court and copies to be returned to my father, Mr.
Kap in pre-addressed envelopes as follows.

46. First set: (1) Form 2 (Rule 64(9)) Praecipe dated April 4, 2001 asking the Registrar to forward
the attached Praecipe in Form 56 and draft Order together with the Plaintiff's Reply in Form
18(Rule 23(1)) and forward them to a Judge or Master of the Court. The Praecipe was signed
by my interpreter Ms. Radoulova as my agent. This was done since the Defendant was
obstructing my possibility to execute the documents myself.

47. Form 56(Rule 41(16.3)) Praecipe, dated April 4, 2001 requiring an Order in terms of praecipe
from the Court to enter and accept the Plaintiff's Reply in response to the Statement of
Defence for the Defendant Republic of Bulgaria by Respondent Ministry of Justice;

48. Form 56A (Rule 41(16.3)) Draft Order in terms of praecipe.

49. 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-

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147/11.01.2001 of the Documents Exchange Service of the Ministry of Justice, proving I had
served the Reply to the Defendant.

50. Certificate of Service dated March 5, 2001 and signed by Ms. Radoulova.

51. Second set: (2) Form 2 (Rule 64(9)) Praecipe dated April 4, 2001 asking the Registrar to
forward the attached Praecipe in Form 56 and draft Order together with together with
Affidavit No. 1 and the attached thereto Notice to Admit and forward them to a Judge or
Master of the Court. The Praecipe was signed by Ms. Radoulova for me for the same reasons
I have previously mentioned.

52. Form 56(Rule 41(16.3)) Praecipe, dated April 4, 2001 requiring an Order in terms of praecipe
from the Court to accept as true the facts and documents set out in the Plaintiff's Notice to
Admit served the Defendant Republic of Bulgaria through its Respondent Ministry of Justice
on January 11, 2001;

53. Form 56A (Rule 41(16.3)) Draft in terms of praecipe Order;

54. 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 Documents exchange service of the Ministry of Justice as proof of
its service to the Defendant.

55. Third set: (3) Form 2 (Rule 64(9)) Praecipe dated April 4, 2001 asking the Registrar of the
SCBC to file the attached application in Form 56 and draft Order in terms of praecipe
together with my Affidavit No. 2 and asking they be forwarded to a Judge or Master of the
Court. The Praecipe was again, for the same reasons signed by Ms. Radoulova for me;

56. Form 56(Rule 41(16.3)) Praecipe, dated April 3, 2001 requiring an Order in terms of praecipe
from the Court pursuant to BC REGULATION 221/90 that I be declared indigent.

57. Form 56A (Rule 41(16.3)) Draft Order;

58. My Affidavit No. 2, dated January 29, 2001, sworn and exhibits to it.

59. On April 6, 2001 at 9:01 PM Bulgarian local time I advised Mr. John Williamson, SCBC
Registrar, by fax, about the documents sent on April 4, 2001 as referenced in § 32.

60. On April 6, 2001 at 9:56 PM Bulgarian local time I sent a message through e-mail to Mr.
Messenger, Manager Civil programs, Vancouver Law Courts advising him of the documents
having been sent to the Registrar as mentioned immediately above.

61. On April 27 I was advised by my father Mr. Kap that SCBC had sent back to him the all
documents sent by me under the two above captioned cases. My father provided me a list of
these documents and a copy of the letter from Mr. Messenger, Manager Civil Programs,
Vancouver Law courts dated April 18, 2000 letting me know that desk order applications were
referred to the Duty Master and that the Duty Master ordered all the applications had to be
spoken to.

62. On April 28, 2001 my direct contact with Ms. Radoulova was no longer interfered with, it
was just simply and unceremoniously withdrawn by the Defendant Bulgaria who was no
longer permitted contact with me.

63. On April 28, 2001 I informed Mr. Messenger and counsel Mr. Lewis of the action by the
Defendant. Numerous requests were sent to Defendant Bulgaria Ministry of Justice about this

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issue and breach of international law. No response was forthcoming about their opinion
concerning.

64. A Notice of Motion dated April 17, 2000 was provided counsel for the Defendant Bulgaria. It
advised Mr. Lewis that an application would be made by parents, Robert and Tatiana Kap on
behalf of themselves and the other class members in S005440 for an Order appointing me the
representative plaintiff and key witness for the class action suit at any hearing or trial. The
class plaintiffs, which include my parents, asked that for subpoena to order the Defendant to
permit my conduct to and from the Court to give testimony. They asked that the SCBC set
aside any hearing on motion by Defendant Republic of Bulgaria until such time as it agrees
to and helps them secure conduct. Other documents provided the Defendant's counsel and it
are as follows.

65. Plaintiffs/Applicant Outline Part I dated April 17, 2001;

66. Affidavit No 3 of Mr. Robert Kap, dated April 17, 2000, sworn

67. On May 2, 2001 I was copied by my father Mr. Kap the following documents.

68. Affidavit No 1 of Ada Gogova dated March 7, 2001 and filed with the SCBC on March 29,
2001 under case No. S005440, a copy of which he received from the Court.

69. Affidavit No. 3 of Robert Stewart dated March 12, 2001 under case No. S005440 in support
of March 7, 2001 Affidavit of Ms. Ada Gogova, which the Court had sent back to Mr. Kap.

70. Notice of Change of Address for Delivery for LifeChoice International - AD under case No.
S005440, dated March 8, 2001 and signed by Mr. Robert Stewart, which had not been
accepted by the Court and had been sent back to Mr. Kap.

71. Form 56 (Rule 41(16.3) Praecipe under case No. S005440 dated March 6, 2001 asking for an
Order, without notice, to join as parties of record to the proceeding all persons identified by
the Plaintiff as being individual members of the class or of a subclass of Plaintiffs alleged to
have suffered property loss or personal injury in British Columbia as a result of acts
committed by the defendants. The Court was asked to provide, ex parte, an Order whereby
each party of record be required to provide to all individual Plaintiffs named sufficient time
to respond or attend at a hearing and all of them to be served in compliance with the Rules of
the Court or with the Hague Convention on the Service Abroad of Judicial and Extra-Judicial
Documents in Civil or Commercial Matters and any reservations and declarations made
thereto. The Court was also asked to extend by 90 days any time fixed by the Rules of the
Court for the serving, delivering, filing or amending of any pleading or any other document.

72. Writ of Summons and Statement of Claim filed on August 6, 1997 with the SCBC Vancouver
Registry No C974299 by Mr. Robert Kap against the Federal Republic of Germany and the
Republic of Bulgaria, which he intended to ask the Court join to case No. S004040 and had
advised about this Mr. Patrick Lewis in a letter on April 17,2001.

73. A letter to Mr. John Williamson advising my father Mr. Kap that on March 6, 2001 they had
sent a package of documents to the Court which contained a Praecipe in Form 56 but a
cheque for the court fee had not been included. Mr. Kap advised Mr. Williamson that a
cheque would be sent by courier to the Court. The letter bears the stamp of the Ministry of
AG, Vancouver Law Courts dated March 20th;

74. Praecipe in Form 56 under case No. S004040 bearing the stamp of the Court dated April 2,
2001 and also bearing a small stamp identifying fee of $ 62.00 paid by father on my behalf.
By the Praecipe the Court was asked to issue an Order in terms of praecipe to extend by 90

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days any time fixed by the Rules of the Court for the serving, delivering, filing or amending
of any pleading or any other document and each party of record to comply with the provisions
of the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in
Civil or Commercial Matters and any reservations and declarations made thereto. The
Praecipe is dated January 29, 2001 and is signed by Mr. Robert Kap for me;

75. A Receipt No 112046 for payment of $ 62 court fee under case No. S004040 ;

76. Affidavit No 1 of Mr. Robert Kap dated January 2, 2001 under case No. S004040 bearing the
stamp of the Vancouver Registry dated March 29, 2001;

77. Praecipe in Form 2 under case No. S004040 asking the Registrar to file a Notice of Change of
Address for Delivery , dated March 6, 2001;

78. Notice of Change of Address for Delivery for Plaintiffs Tracy and Nicholas Kapoustin under
case No. S004040 , dated March 6, 2001.

79. On May 2, 2001 I advised Mr. Messenger I was going to appeal the decision of the Duty
Master. In a response of the same date he suggested I seek legal advice before making the
application and that this type of application is usually spoken to.

80. On May 9, 2001 I sent a message by e-mail to Mr. Lewis reminding him of my concerns
about the possible obstructions and interference of his client with his preparation for the
lawsuits filed proved to be true on April 28th and that I understood that they intended to
remove some other facilities I had the secured, after much heated debate and struggle. This
would make it impossible for me to do anything in BC or anywhere else. I also advised Mr.
Lewis that my defence counsel here in Bulgaria and others considered these acts were with
purpose and that they, being Bulgarians, did not agree to it and the acts are illegal under
Bulgarian constitutional law and international agreements.

81. On May 10, 2001 I sent a letter to Mr. Messenger, dated April 7th advising him of the
obstruction I was facing and of my fears that all my contacts with the B.C. Court would be
closed. I also expressed my opinion that Bulgaria is politicising my case for some unknown
reasons and that my family and I do not know what to do. I sent the letter by e-mail on May
11, 2001 advising Mr. Messenger that I was preparing important documents for this case but
there was no way to take them and send them to Canada.

82. On June 5, 2001 I sent by courier, UPS way bill No W746 850 197 2 to the Registrar of the
Court for the attention of the Presiding Judge a Notice of Appeal from the decision of the
Duty Master under both cases. I appealed the Order of the Duty Master to not file evidence in
the two actions or to hear ex parte motions, he having ordered the return of all Form 56
applications made in terms of praecipe and Form 56A orders as had been filed with evidence
to the Court.

83. My appeal was in the nature of an s. 24(1) Charter application to the Court.

84. On June 12, 2001 my interpreter Ms. Radoulova received by fax fifteen pages of documents
from the offices of Sugden McFee and Roos advising about the date of hearing of both
actions S004040 and S005440 on July 13, 2001. The documents were as follows.

85. Letter of Advice dated June 11, 2001 addressed to me, c/o Ms. Marianna Radoulova under
Action No S004040.

86. A Rule 65 Chambers Index under Action No S004040.

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87. Notice of Hearing, dated May 31, 2001 of Application of the Defendant for denial of
jurisdiction dated February 23, 2001 under Action No S004040.

88. A Rule 65 Chamber Index under Action No S005440.

89. Notice of Hearing, dated May 31, 2001 of Application of the Defendant for denial of
jurisdiction dated February 23, 2001 under Action No S005440.

90. A copy of a Letter of Advice dated June 11, 2001 addressed to LifeChoice International - AD
under Action No S005440.

91. A copy of a Letter of Advice dated June 11, 2001 addressed to Dimitar Hristov, Borislav
Marinov, Radka Petrova and LifeChoice BANQ1 Corporation under Action No S005440.

92. A copy of a Letter of Advice dated June 11, 2001 addressed to Tracy Kapoustin under Action
No S004040.

93. A copy of a Letter of Advice dated June 11, 2001 addressed to LifeChoice BANQ1
Corporation under Action No S005440.

94. Cover letter to Tracy Kapoustin, Nicholas Kapoustin and Michael Kapoustin under Action No
S004040 dated June 11, 2001.

95. A copy of a Letter of Advice dated June 11, 2001 addressed to Tracy Kapoustin as guardian
Ad Litem of Nicholas Kapoustin under Action No S004040.

96. On June 13, 2001 Ms. Radoulova sent a message to Mr. Lewis advising him that she was in
receipt of his fax message consisting of 15 pages but that regretfully she could not deliver the
documents to me or the other Plaintiffs. Ms. Radoulova also reminded him that she no longer
had regular contact with me since on or about April 18th and that I had advised him in a letter
on February 26 that any fax to Ms. Radoulova would not be considered by me to be proper
service. Ms. Radoulova also advised him that it would be best to consult his client on how to
serve the documents properly and also that I wished to attend the hearing, investors here in
Bulgaria and other prepared to provide conduct money to and from Canada.

97. On June 14, 2001 I wrote a Motion to the Ministry of Justice referring to the two above
captioned actions, advising the Ministry about the date of hearing fixed for July 13th, 2001 at
the request and motion of the Canadian defence attorney for the Government of the Republic
of Bulgaria, Mr. Patrick Lewis.

98. I required from the Ministry that as a Canadian citizen Michael Kapoustin, and being a ward
of the Ministry of Justice at the Sofia Central Penitentiary that its responsibility to
international comity and law and to me was to arrange conducted in the custody of its and
Canada's police to and from the judicial hearings fixed by it before the Supreme Court of
British Columbia.

99. I requested that the Ministry make arrangements with the Ministry of Interior, Convoy police,
of Bulgaria and the Ministry of the Attorney General of Canada, R.C.M.P. to provide security
and supervision over Michael Kapoustin to and from the court in Canada, all reasonable costs
at the expense of the petitioner.

100. In the alternative I asked the Ministry was required to act immediately and instruct Mr. Lewis
to adjourn generally any hearings before the Supreme Court of British Columbia until such
time as the Governments of the Republic of Bulgaria and of Canada can secure the
petitioner's fundamental civil rights to be present at such hearings. In case of refusal I required

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the Ministry to point out, in writing the exact provisions of national or international law it
relied on to deny him me of my fundamental civil rights. The Motion was sent by registered
mail return receipt No 348 dated July 18, 2001.

101. On June 15, 2001 I wrote a letter to Mr. Lewis advising him that I was aware of the date of
hearing set down for July 13, 2001 and advising that I would take the necessary steps to try to
be present, but that there was no political will to have me present. I also advised Mr. Lewis
that he had not been provided me with copies of the affidavits of Mr. Gogov and Ms. Bidjeva
referenced in the chamber indexes as per the provisions of ss. 65(33) Rules of the Court. I
also further reminded that according to ss. 65(32) Rules of the Court affidavits of service were
not to be included in the chambers record. Therefore I insisted on being provided by Mr.
Lewis' his clients copies of the affidavits in order to examine them. The original of the letter
was sent by registered mail return receipt No 30286 on June 23, 2001.

102. On June 20, 2001 I was advised by my father Mr. Kap of a letter sent to him by Mr.
Messenger that the Notice of Appeal from Duty Master was referred to the Honourable Mr.
Justice E.R.A. Edwards and that His Lordship reviewed it and directed that no further steps be
taken by the Plaintiff until a representative of the Plaintiff speaks to this matter in the Court.
Mr. Messenger advised that the following agencies might be able to assist me in this matter:
(1) Neighbourhood Law Clinic - (604) 878 - 7400; (2) The Salvation Army - (604) 871-7681,
fax (604) 299-7463; (3) Legal Aid - (604) 6300, fax (604)681-6942 (usually acting in
criminal matters only); (4) Lawyer referral service - 1-800-663-1919.

103. On June 25, 2001 I wrote a letter to Mr. Messenger advising him that I he had received his
letter and that he had undertaken to contact the agencies referred to by him. I also asked for
clarification about the date of Mr. Messenger's letter since my his Appeal had arrived at the
court house on or about June 11th, 2001. Also I asked certain clarifications as follows.

104. On what date the Registrar had entered the Appeal from the Master;

105. On what date His Lordship Mr. Justice E.R.A. Edwards had ruled on that Appeal;

106. What grounds His Lordship had provided to refuse Mr. Kapoustin's request for judicial
direction and to employ subrules 40(4) or 59(3) or (4) Rules of the Court;

107. On what grounds His Lordship had refused to examine the balance of my motion framed in
terms of praecipe as I had enumerated in my appeal.

108. Whether appearance or defence had been filed by Defendant Staff Sgt. Derek A. Doornbos or
by the Ministry of the Attorney General as intervener.

109. I advised Mr. Messenger that I had begun to form the notion that the incarcerated indigent
Canadian citizens was without the right of legal recourse before a court of law, the reason for
this being his inability to secure from the Court any of the practical means available and
necessary for his exercise of ss. 24(1) Charter rights. Also I advised Mr. Messenger of my
impression that my right to equality at arms and judicial relief as a lawful litigant were
dictated not by law but instead by the financial resources and physical freedom that other
Canadians' take for granted but I, unfortunately, had been deprived of as a result of the
defendant against whom the claims had been brought. The defendant enjoying greater
equality than the indigent and incarcerated plaintiff unable to retain an attorney or obstructed
from himself speaking to the matter. I advised also that I would be happy if the court were to
fix a date to have me speak to the matters and for it to notify the defendant that my presence
was required.

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110. The said letter was sent to Mr. Messenger through e-mail on June 25, 2001 together with the
text of the fax messages to the Salvation Army Legal Aid Clinic and to Legal Aid British
Columbia. It was later resent, in original, by registered mail, receipt No 11 dated July 3, 2001.

111. On June 25, 2001 at 6:40 P.M. 6:33 P.M. I had sent by fax a letter to Legal Aid British
Columbia, advising them of the two above captioned actions and of my circumstances.

112. I advised the SCBC and the legal aid centres that I only sought the possibility to be permitted
to submit argument and evidence by, inter alia, telephone conferencing, video link, affidavit
or deposition or by conduct in custody to and from hearings or trial by the Defendant,
Republic of Bulgaria;

113. On June 25, 2001 at I sent by fax Mr. Kapoustin's letter to the Salvation Army Legal Aid
Clinic with the same text.

114. On June 25, 2001 I asked, by letter, that my interpreter try to reach by phone the other two
legal clinics as recommended by Mr. Messenger in his letter, but she had no success and tried
several times more during the following week but either could not speak to anyone or was cut
off when the persona answering heard that the call was from Bulgaria. Therefore I was unable
to send the said letter to them due to the fact that I had no fax number or mailing address of
these clinics.

115. On June 26, 2001 I received by e-mail a letter from Mr. Messenger in response to my letter
dated June 25th. He advised me that my application had been forwarded to His Lordship on
June 8th; His Lordship informed Mr. Messenger of his decision on June 8th; Mr. Messenger
wrote his letter advising of his Lordship's decision on June 11th; by that date [June 26th] the
Republic of Bulgaria was the only party that had filed an appearance.

116. On June 27, 2001 I received by e-mail a letter from a Mr. Tony Davies, managing lawyer of
Vancouver intake clinic of the Legal Services Society of British Columbia in response to my
June 25th fax message advising me that the LSS of BC would not provide legal aid counsel to
me to pursue my civil actions since they do not provide counsel fees to any persons pursuing
civil legal actions as plaintiffs since these fees are not part of the mandate of the Society.

117. On July 4, 2001 I managed to obtain a court order from the Court of Appeal of Bulgarian
overturning the defendants' decision and reinstating my contacts with Ms. Radoulova until
only July 16, 2001 This permission gave me, for limited time only, the opportunity to organise
and prepare a Charter application and pleading to be filed with the Court of Appeal.

118. On July 5, 2001 at 10:52 A.M. Bulgarian time I had sent a package of documents, prepared by
me, consisting of 12 pages, by fax to the B.C. Court of Appeal Registrar for the attention of
Ms. Jennifer Jordan. The documents were as follows.

119. A letter to Ms. Jordan advising her who I am and what my circumstances are. I explained to
the Registrar that I needed instructions on how to formulate my filings with the Court of
Appeal: I required leave to appeal in forma pauperis and provided such filings and a notice of
my appeal. I asked the instructions to be addressed to my interpreter Ms. Radoulova or sent to
me directly at the penitentiary. Certain questions were posed as to the number, form and style
of the filings; the issues of controversy were specified; directions concerning constitutional
questions were asked for, and I advised her of my correspondence with the Ministries of the
Attorney Generals of Canada and of British Columbia. Those documents are on file with this
Court and precipitated my affidavit.

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120. On July 6, 2001 at 6:50 P.M. I sent by fax a to Mr. Messenger expressing my gratitude for any
assistance provided and posed some questions to Mr. Messenger concerning the practical
consequences of His Lordship and the Court's decision as follows.

121. Would the Court accept any additional in absentia filings and documental evidence of the
Plaintiffs as Respondents necessary to prove their case as to proper jurisdiction on July 13th?

122. Should the Plaintiffs send such filings or the Registrar would send them back?

123. Should the Registrar accept the Plaintiffs' "further steps" and provide them to the Master on
July 13th and if so, could the Master accept the "steps" and act alternatively to His Lordship's
final decision?

124. Could this issue, once already decided [No action in absentia] could it again be revisited re
judicata and decided in the alternative?

125. Would the Master on July 13th be bound by His Lordship's decision and as a result be
required to not admit or consider the Plaintiff's filings in the absence of the Plaintiffs at the
hearing?

126. Would the Master then proceed ex parte of the Plaintiffs and only admit the evidence
provided by the Defendant?

127. Was the duty Master who first ruled that the Court would not accept for filing affidavit
evidence or to admit or hear motions and pleading in absentia or ex parte of the physical
person of the Plaintiffs be the same officer of the Court set to hear the Rule 65 matter fixed
by the Defendant, Republic of Bulgaria for July 13th?

128. I expressed my concerns and personal observations on the matter, advising my willingness to
appear but being under a legal disability due to his circumstances and the inability of other
members of my family to appear or retain a counsel.

129. In conclusion I finished by asking whether I should proceed and send the pleadings and other
evidence; or I should forward a motion to adjourn the matter until the Court of Appeal
decided to grant or deny leave?

130. How should I, under my present circumstances, defend the Plaintiffs' interests and my own as
respondent?

131. Should I cease attempting to communicate with the Court and its officers and rely only on the
Court of Appeal?

132. On July 6, 2001 at 10:37 P.M. I sent by fax only a letter to the offices of Mr. Lewis advising
him about the June 25th response of the Ministry of Justice Republic of Bulgaria and the
absurd statement by the Minister of Justice for Bulgaria, his client, that the law firm of
Sugden, McFee and Roos represented my interests. I advised Mr. Lewis of the recent
elections in Bulgaria and of my expectations that the new government of might present a
wholly different attitude from the former one. A translation and a copy of the Ministry of
Justice response was attached.

133. On July 7, 2001 early morning I received by e-mail a letter from Mr. Messenger dated July 6,
2001 in response to my letter of the same date as referenced in above. He advised me that if I
decide to file material in response to the Defendant's application, Mr. Messenger would place
it before the court and inform the court of the previous rulings. It would be up to the court if
they wish to consider the material. He again suggested that I seek legal advice and arrange

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someone to represent him at the application on July 13th. This hearing was later adjourned, by
consent to August 24th 2001.

134. August 1, 2001 I sent a letter to Mr. Messenger by e-mail requiring a decision of a Master
concerning the hearing on August 24, 2001 on the application to jurisdiction of the provincial
court in both actions. I asked whether a Factum and relevant affidavits could be captioned
with both cases.

135. On August 2, 2001 early morning I received Mr. Messenger's response that Mr. Kapoustin
should consult with the opposing party about this issue. He also advised that, provided I
wished to file the documents, the Registry would accept them for filing but this was subject to
any order from the master presiding over the matter.

136. Between August 20th and August 23rd 2001 I have had forwarded to the Vancouver Registry
my affidavit No. 15, consisting 51 pages and my Factum consisting of 106 pages and 2
volumes in excess of 500 pages of documents and affidavit evidence in support of my Factum
and the plaintiffs and my original pleadings as filed.

137. As of this date I am unable to attend hearings and am unsure if my pleadings and evidence
will reach the Master or if submitted if leave will b granted for its admission and
consideration. I am not able to obtain a remedy in law if an administrative decision is to deny
me my access to the Court.

138. I am of the sincere conviction that I am the subject of indirect or constructive discrimination
due to my social circumstances, and that the administrative discretion of the Duty Master or
Judge is insensitive to the special and difficult circumstance of those who, as me, find
themselves in the rare, but not impossible, situation of (1) an indigence person (2)
incarceration in a penal institution, and (3) at once at odds in civil litigation with the
government agency responsible for his or her detention the injuries and damages claimed
against the a part of the same government as claims framed in tort and for breach of
commercial contracts and for the criminal obstruction and interference with the processes of
international and national justice.

139. I believe, if the applicable standards of fairness and justice are applied, that the one decision
by His Lordship, which I am seeking leave to appeal has effected my legitimate interests in
both causes of action and denied me my right to bring an appeal under ss. 24(1) of the
Charter.

140. It is with frustration that I experience each repeated suggestion to me to obtain legal
representation or aid which I know is impossible for my circumstances.

141. It is most disturbing to me, as a Canadian, to be advised I have the legal status of a "non-
person" until I retain legal representation. Such suggestions are without practical merit. The
inevitable and predictable consequence of which is that I have been left by His Lordship of
the lower court without any legal recourse since, I do not, administratively, in the eyes of the
lower court and am, as a "persona non grata", unable to secure a hearing of my Charter
complaints and those of interference and obstruction of my rights in law by the defendants.

142. A further consequence to me of His Lordship Mr. Justice Edwards' administrative order is to
deny other plaintiffs and me in both these proceedings to file our affidavit and other evidence
to prove our claims case on the merit and obtain a judicial decision on the basis of the facts
and the merits, if any, of our arguments.

143. It is a fact, and I gave provided to the lower court, third party affidavit evidence that the
Defendant Bulgaria's agencies are employing the order of His Lordship and the defendants

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practical administrative powers over me to have its officials obstruct my rights under
Canadian and Bulgaria and international law in the hope to obtain a favourable order against
the interests the interests in the administration of justice in Canada's courts.

144. I am unable to act against those responsible since under Bulgaria law and as a practical
matter, the officials responsible are all constitutionally immune from private civil and criminal
prosecutions and can, as a result, act with impunity.

145. I believe that His Lordship and the lower court have unknowingly prejudice my rights and
have has vicariously predetermined by a judicial decision in favour of the Defendant(s) prior
to any hearing on the merits of my complaints.. His Lordship having as a practical
consequence directly obstructed my rights under s. 15 of the Charter, sufficiently so as to
make questionable if equal justice can be done at any future hearing or trial of the law suits in
question.

146. I believe and recognise the intent of the decision of His Lordship as opposed to the vicarious
fact resulting from that decision and prejudicing the my legal interests and that other plaintiffs
and recognise that in principle His Lordship took a practical administrative decision that has a
negative ad unfair impact on me and anyone else like me.

147. I believe that in my case the decision of His Lordship has created a reality that bears no
resemblance to his intention when making that decision, having denied me my right to access,
the procedural powers of the courts. I was thus wrongly obstructed from any possibility to
obtain a judicial remedy for his complaints or any other relief sought.

148. My circumstances have created, if my fundamental Charter rights are to be observed, a


legitimate need to apply for and rely on those residual and extraordinary powers available to
the court in common law and statutes of Canada. The decision of His Lordship is appealed
had denied me, as I previously stated, the only practical possibility available for me to
exercise my right to access the court and its powers.

149. I do not believe my s. 24(1) Charter complaint on appeal to His Lordship Edwards should be
taken in camera, without a hearing or trial. This can not, I believe, reasonably be deemed a
fair hearing of a Charter complaint against the Duty Master, if the principles of natural justice
are to be observed and applied equally to the circumstances of all the parties. It is a basic tenet
of our legal system that the rules of natural justice and procedural fairness are adjusted by
reference to the context in which they are administered.

150. From my experience thus far it appears, at least on the surface, there is a practical
inoperability of the regulations applied t my circumstances and that they are incompatible
with Charter principles.

151. I have written and complained to the ministries of the Attorney General of Canada and British
Columbia. However, no reply has been received.

152. I intends to again apply to those offices and this time frame the correspondence more closely
within the style, form and ambit of the Constitutional Question Act, R.S.B.C. 1996, c. 68.
pursuant to s.8 of that Act.

153. Notwithstanding the legal disabilities of my imprisonment and indigence and limitations of
my education and intellect I have nonetheless applied to the Court of Appeal and seek an
order in the nature of certiorari or mandamus to the lower court hear my s. 24(1) Charter
complaint and to allow me to submit my pleadings and argument in writing.

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Dated this August 23rd 2001 at the Central Penitentiary of the City of Sofia, the Republic of Bulgaria.
Applicant
Michael Kapoustin

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