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C1c Aff16. Part II for Time

C1c Aff16. Part II for Time

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Published by: Michael on Aug 29, 2009
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Court of Appeal File No.___________Court of Appeal Registry VancouverSupreme Court File NO. S004040Supreme Court Registry Vancouver
 Affidavit No. 16Michael 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)AndSupreme Court File NO. S005440Supreme 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,andother similarly situated
Appellants(Plaintiffs)And
REPUBLIC OF BULGARIA et al
Respondents(Defendants)
AFFIDAVITPART II
STATEMENT OF FACT TO AFFIDAVIT No. 16Factual Matters12.On December 29, 2000 at 10:41 P.M. Bulgarian time I had sent by fax documents to theSupreme 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 theDecember 7
th
2001 Appearance and Defence of the Defendant Bulgaria as provided me by theGovernment of the Republic of Bulgaria, Ministry of Justice.21517197.docCreated by Michael KapoustinPart II - Page 1 of 14
 
14.A certified translation from the Bulgarian language of the said December 7, 2000 Statementof 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 11
th
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. JohnWilliamson, that there were some deficiencies and he gave me his phone fax number so that Icould contact him directly and receive information and explanations on certain proceduralissues, 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. Williamsonwho advised me that for the time being he would accept the documents faxed but I shouldsend 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 Iwould send the original documents by registered mail. I also had Ms. Radoulova advise himof the circumstance of my family and their inability to retain a legal counsel, which was thereason I had to prepare all the documents under the case by myself. I provided him the contactnumbers for my father, Mr. Robert Kap and the addresses and phone numbers for contactingmy interpreter Ms. Radoulova..21.On January 8, 2001 at 8:56 PM Bulgarian time I sent by fax to the Registrar a draft Praecipefor default judgement and an affidavit, which my friend and agent Mr. Robert Stewart wasgoing to swear out under case No S004040 and asked what deficiencies Mr. Williamson hadfound 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 oMr. Williamson a copy of my Reply under case No S004040 to the December 7, 2000Statement of Defence of the Defendant Bulgaria as served on me by the Respondent Ministryof Justice, Republic of Bulgaria. I advised him that the originals would follow by registeredmail.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 notreceive 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. BrentMessenger, Manager Civil programs, Vancouver Law Courts had advised me through myfather 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 allthe defendants identified in S004040 with the exception of the defendants Bulgaria andR.C.M.P. Officer Derek A. Doornbos. The former having provided me a defence, and thelatter not yet served. Mr. Messenger advised that a filing fee of $62.00 was to be paid. AlsoMr. Messenger advised me that he was also returning the documents sent earlier by methrough fax since there were no provisions of the SCBC Rules to accept faxed documents.21517197.docCreated by Michael KapoustinPart II - Page 2 of 14
 
Since the case is very complicated Mr. Messenger suggested that I seek assistance from alawyer. His opinion was that a desk order application was not appropriate and that all futureapplications 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, 2001letter thanking for his attention and explaining that my circumstances required me to act prose and act only in absentia in writing.26.On January 24, 2001 Mr. Messenger sent his reply by e-mail answering my questions andgiving the phone of Neighbourhood Law Clinic and the phone and fax number of theSalvation 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, Republicof Bulgaria on Articles 10; 16 §§1 and 2 and Article 8 §2 of the Hague Convention on ServiceAbroad 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 tocomply with the relevant Convention articles or to an extension of 40 days to the periodsfixed by rule or order for serving, delivering, filing or amending any document under the caseS004040, 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/oMarianna Radoulova advising that counsel had instructions to take no other steps in theselawsuits 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 fearsthat my communication to the SCBC might be limited or otherwise controlled by his client,concerning the involuntary service attempted by Defendant Republic of Bulgaria anddiscussion upon the issue whether the Defendant could rely on State immunity. The letter wassent by registered mail return receipt No 74 on March 20, 2001 and according to the stamp onthe return receipt it was received at the offices of counsel, Sugden McFee and Roos, on April2nd. The return receipt was received back on April 10th. The said letter was faxed to theoffices 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 CentralPenitentiary who served documents to me as sent them by counsel for the Defendant AttorneyLewis. 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 theRepublic 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.S00404035.Appearance on behalf of Republic of Bulgaria, signed by Mr. Patrick Lewis, dated February8, 2001, bearing the stamp of the Court Registry, case No. S004040;21517197.docCreated by Michael KapoustinPart II - Page 3 of 14

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