Part I.

STATEMENT OF FACTS
[1]Following is a history of the proceedings before the trial court, including relevant events
leading up to the commencement of the law suit and the present applications before the
Appeal Court.
1.Course of the Proceedings.
1.1. The Law Suit.
1.Originating The Proceedings
[2]On July 25th 2000, the Speaker together with his wife and son, the "Plaintiffs", as residents of
the province and citizens of Canada, brought a civil action in the British Columbia Supreme
Court ("B.C.S.C.") jointly and severally against residents of the Republic of Bulgaria Mr.
Stefcho Georgiev, Mr. Mario Stoyanov, Ms. Emilia Mitkova, Ms. Kina Dimitrova, Ms. Iveta
Anadolska, Mr. Dimitar Shackle and the Republic of Bulgaria, Mr. Muravei Radev in his
capacity as Minister of Finance.
[3]Also named as a joint and several defendant in the law suit is a resident and citizen of Canada,
Mr. Derek Doornbos an employee of the R.C.M.P. and servant of the crown at its Embassy to
Austria at Vienna.
[4]All Defendants have received originating documents. In the case of defendant Doornbos
service was effected through the facilities of his employer, the Government of Canada,
R.C.M.P., at Ottawa and its office at the Embassy of Canada to Austria.
[5]By November 15th 2000 all the Bulgarian defendants cited above were in default of
appearance. As of this application neither the defendant, Doornbos, nor the Crown as his
employer, has filed any appearance in the above styled cause of action.
2.Applications to the Registrar.
[6]On or about November 23rd 2000 the Speaker delivered a number of Rule 17, Rules of Court,
applications to the SCBC Registrar. The plaintiffs applied for desk orders entering judgement
for an unspecified amount, jointly and severally, against those defendants found in default of
appearance.
[7]These applications were returned. The SCBC registrar remarked the affidavits of service and
attached documentation was deficient. The Speaker undertook to address the deficiencies.
[8]On December 7th 2000, the defendant Bulgaria, prepared a defence in the form of a letter from
the Ministry of Justice, Republic of Bulgaria, the deputy minister Z. Rousseva responding to
the plaintiff's statement of claim and writ.
[9]On December 9th 2000 the Speaker was served by prisoner administrators of the Sofia Central
Penitentiary the prepared statement of defence of the Respondent Bulgaria.
[10]On December 29th 2000 the Speaker filed with the trial court [SCBC Registrar] a copy of the
defendant government's (Republic of Bulgaria) written defence. The statement of defence was
discursive, its form and style not conforming to the court's practice.
[11]The Speaker prepared a Reply and a separate Notice to Admit of facts and documents in the
form required by the Rules of Court and served them on the Respondent, Ministry of Justice,
in the time as fixed by the Rules of Court.
[12]No response has been forthcoming to the plaintiffs' Reply or their Notice to Admit.
[13]In January 2001 or thereabouts the Speaker corrected the previous deficiencies identified by
the trial court [SCBC Registrar] in November 2000. Again the applications for desk orders
were submitted. The Speaker, as plaintiff, requested orders that declared all the Bulgarian
defendants in default of appearance, and seeking judgement for an unspecified amount. The
defendant, Republic of Bulgaria was excluded from the plaintiffs petitions, having served a
defence to the plaintiffs on December 9th 2000.
[14]As well the Speaker brought other applications before the trial court raising issues for, inter
alia, extending the time for service and response, the manner of ex juris service, and the
question on how the Speaker, an indigent person deprived of his liberty, is to appear or
otherwise be represented in proprio persona before the trial court. The following orders were
sought:
1. Desk orders to enter judgement against all the Defendant's in default of appearance,
with the exception of the defendant, the Government of the Republic of Bulgaria and
defendant Doornbos.
2. An ex parte order extending time, by 90 days, for all parties to affect any acts
required under the Rules of Court.
3. An ex parte order to require each party of record comply with Rule 13(12)(c), Rules
of Court and the Hague Convention of the Service Abroad of Judicial and Extra
Judicial Documents in Civil or Commercial Matters ("Hague Convention"), at once
respecting and observing the declarations made to the Hague Convention by the
Republic of Bulgaria. This to include officials or agencies of the Respondent
responsible for delivering documents to this Applicant.
4. An ex parte order requiring the Respondent have its agencies (1) conduct the Speaker
in custody to any hearing as may be fixed by the Respondent or at any trial before
the SCBC; or (2) to alternatively permit the incarcerated Speaker to communicate
electronically or transmit in writing his pleadings on any applications the court
required be spoken to. This order in particular relied on the inherent jurisdiction of a
court of Canada to guarantee all litigants their s. 15(1) Charter of Rights and
Freedoms, (hereinafter the "Charter") and the procedural relief available from the
Rules of Court as found under Rules 40 and 59, particular attention placed on the
provisions in 40(4), 40(40), 59(3) and 59(4).
5. An order declaring the Speaker indigent, the court asked to provide him the
appropriate relief from court fees.
[15]On January 21st 2001 the Speaker's applications were again returned by the trial court [SCBC
Registrar]. The Registrar requiring, inter alia, that the applications made be spoken to before
a Master or Chambers Judge by a legal representative of the Speaker and payment of the
$62.00 court fee per application. This was asked of the Speaker, as petitioner, by the trial
court, although it being made clear from the petitions themselves and affidavits, that the
Speaker could not appear and had no funds to pay the fees.
[16]By February 8th, 2001 only one appearance had been filed with the provincial court, that of the
Respondent.
[17]On February 24th, 2001 the Speaker learned of the Respondent's having retained its present
Vancouver legal counsel and filing an appearance.
[18]No other defendant has since filed an appearance or offered a defence before the trial court.
[19]For the third time, on or about April 2001, the Speaker again amended and re-filed his
petitions to the trial court [SCBC Registrar], having asked his father to pay the $62 dollar fee
to at least have the Speaker's indigence application reviewed and judicially ruled upon. All
petitions identified the circumstances of the petitioners incarceration and poverty, requesting
under such circumstances that the Duty Master hear the Speaker pleadings only in writing and
ex parte of the Respondent.
1.2. Decisions of the Duty Master and Chambers Judge
[20]On April 18th 2001, the Duty Master reviewed all the applications and again ordered them
returned. The learned Master required that all applications be fixed for a hearing and spoken
to by the Speaker or his legal representative.
[21]On June 5th 2001, relying on s. 24(1) of the Charter and form 61 Rule 53(7), Rules of Court,
the Speaker petitioned the trial court for relief from the Duty Master's order.
[22]As grounds to the learned Chambers Judge for the relief sought, the Speaker made reference
to his rights as guaranteed under s. 15(1) of the Charter, the Duty Master's order having the
effect, if not intent, of breaching his fundamental rights.
[23]The argument set out on appeal from the Master may be summarised as an assertion that the
Duty Master's order as made had proved demonstrably, on application to a person having the
status of someone deprived of his liberty, to "exceptionally" prejudice the rights of the one
party, the plaintiff, more than it would any other person, and solely because of the plaintiff's
distinct status.
[24]The Speaker's assertion to the Chambers Judge was that the Master's application of Rule
41(16.5(b)) to him or any citizen in a similar situation [deprivation of liberty and indigence a
consequence of a long period of foreign incarceration] had the affect of being discriminatory.
Particularly in the circumstances where the one party in the proceeding before the trial court is
incarcerated by another party to the same proceeding that has a legal interest adverse to that of
the petitioner.
[25]The Speaker asserted to the Chambers Judge that the Duty Master's order to the petitioner
[appear or hire a lawyer] was unreasonable in that the Master's order was in the nature of
requiring one party, a person deprived of liberty, to do something that was beyond his or her
self-determination to do and so impossible for them to do. As a result such an order must in
principle be wrong in law as it would be seen to be prejudiced against the one party suffering
an afflictive status [loss of personal liberty and property].
[26]It was identified to the learned Chambers Judge that the party most effected by the Master's
order, the imprisoned petitioner, was being kept by the adverse party from complying to the
terms fixed in the Duty Master's order.
[27]This Applicant argued to the Chambers Judge that if defendant Bulgaria remained unchecked,
or the order remained unmodified, the affect would be the continued prejudicing of not only
the petitioner's s. 15(1) Charter rights but would bring the very outcome of any future trial
court proceeding into question as to its procedural fairness.
[28]On appeal the Speaker insisted to the Chambers Judge that the factors of incarceration and
indigence created a disadvantaged class of person [citizen] by the very fact of his or her
imprisonment. That these factors, when combined, acted as a very real legal disability and
required a special standard of judicial review and care necessary to procedural fairness, the
Duty Master having had the constitutional duty and jurisdiction to review and answer all
complaints under s. 24(1) of the Charter, an indigent prisoner only able to speak in writing
before the court.
[29]The petitioner, this Speaker, claimed to the Chamber Judge that his Charter grievances were
within the ambit of s. 15(1). They are real, not imagined, and the court asked to exercise its
procedural possibilities under the Rules of Court, enactments and international treaties to
secure the petitioner's rights before the trial court as a person deprived of his liberty and
property by a defendant.
[30]For the reasons given above the order wrongly favoured the adverse party responsible for the
afflictive status of the petitioner. The defendant Bulgaria had caused the afflictive state, and so
by refusing this Applicant access to the trial court it produced the desired, and desirable, affect
of silencing the petitioner.
[31]On June 11th 2001 the learned Chambers Judge, His Lordship E.R.A. Edwards, returned the
appeal of the Speaker, requiring the appeal and all other petitions be spoken to before the
court, either by the Speaker, as petitioner or his legal representative.
[32]On June 23rd 2001, the SCBC Registrar advised the Speaker of His Lordship's decision, but
provided no direction to the incarcerated and indigent petitioner on how exactly he was
supposed to comply with the terms of the Duty Master's order to have his spoken to. His
Lordship Edwards J., like the Duty Master, had known, or at least should have known, of the
petitioner having been deprived of his self-determination and unable to appear of his own free
will before the court.
[33]It had been made clear, or should have been clear, to His Lordship Edwards, J., that this
plaintiff had been unsuccessful in having the defendant Bulgaria's state agencies to agree
undertaking to secure his appearance in custody before the trial court.
[34]It had further been made clear to His Lordship Edwards J., that the petitioner could not afford
an attorney. His Lordship provided no direction to the petitioner how, or where, he could
secure the funds or legal aid necessary to retain an attorney to represent him, in proprio
persona, at a hearing of his petitions. The court had known, or should have known, that as a
rule and practice legal aid is not available to incarcerated persons in pursuit of their civil
claims.
[35]On June 25th 2001 the Speaker advised the SCBC Registrar that he intended to appeal the
Duty Master's Order and decision of His Lordship Edwards J. to the British Columbia Appeal
Court.
[36]On June 26th 2001 the SCBC Registrar advised the Speaker he had received the letter
notifying him of the Speaker's intention to appeal. Also the SCBC Registrar advised the
Speaker that only the defendant Republic of Bulgaria had to that date filed an appearance,
other defendants remained in default.
[37]On July 5th 2001, the Speaker advised the Registrar of the British Columbia Appeal Court
("B.C.A.C") of the nature of his appeal, and the practical consequences of his incarceration
and indigence. The Speaker asked the Registrar to provide him with some direction as to the
procedures and practice of the B.C.A.C., the Registrar graciously consented and has provided
the Speaker with the badly needed direction.
1.3. First Hearing - July 13th 2001.
[38]The date of the first hearing before the trial court was fixed by the defendant Bulgaria's
lawyer for July 13th 2001 before a Master, the defendant relied on the provisions of Rule 65,
Rules of Court.
[39]On July 6th 2001 the Speaker enquired with the SCBC Registrar on how he should proceed
under circumstances of the Duty Master's order requiring he appear or retain an attorney.
Would the Master at the July 13th court session "hear" the Speaker, as plaintiff/respondent, in
writing? The defendant/applicant Bulgaria having refused to conduct the plaintiff/respondent,
this Speaker, in custody to the hearing fixed by its legal counsel. Neither the court [providing
procedural relief], or alternatively the Respondent [providing escorted conduct] was prepared
to undertake measures to facilitate the Speaker's physical possibilities to bring his arguments
or alternatively himself to the hearing scheduled before a Master.
[40]The SCBC Registrar provided no answer to the Speaker except a willingness to deliver any
documents the Speaker cared to file and have set before the court at the scheduled hearing.
The Master would make the determination of what to do next.
[41]On or about the same time in July the Speaker contacted the defendant Bulgaria's Ministry of
Justice and its legal counsel in Vancouver. The Speaker advised both the Defendant Bulgaria,
and its Vancouver counsel, of his intention to appeal the decision of His Lordship Edwards J.,
further advising of an intention to bring several other applications, and additional arguments,
with new evidence in response to the Rule 13, jurisdiction simpliciter, and Rule 14, forum
non conveniens, motions of the said defendant fixed for July 13th 2001. In order to do so the
Speaker required additional time from the defendant Bulgaria, having made a written plea to
the newly elected government of the Republic of Bulgaria asking it to direct the former
government's counsel in Vancouver to fix a later date for the hearing.
[42]The July 13th hearing was adjourned, by consent, to August 24th 2001.
1.4. Second Hearing - August 24th 2001.
[43]On August 24th 2001 legal counsel for the defendant Bulgaria appeared before a Master on
the said defendant's jurisdiction simpliciter and forum non conveniens applications. The
plaintiffs, including the Speaker, were unable to obtain legal aid and were not represented.
Counsel had fixed the hearing for approximately 2 hours.
[44]The Speaker (plaintiff/respondent) had previously made his objections to so short a time
known to Vancouver counsel. Having advised him, and the defendant Bulgaria, that issues of
jurisdiction simpliciter and forum non conveniens turned on more than the points of law
raised in the defendant's Rules 13 and 14 applications. The factual matrix leading to the
causes of action before the trial court were complex and to be examined quantitatively by the
Master if not qualitatively. The Speaker's principal argument was that the practice found in the
common law required the plaintiffs display all the facts, and documental evidence they relied
on, available case law providing clear precedents to guide the Master on the standard of
review and procedural fairness expected when reviewing jurisdiction applications.
[45]The Speaker, prior to the hearing date, had posted to the court (4) four bound volumes
consisting of approximately 500 pages each of documentary evidence of, inter alia, contracts,
cash, bank and other transaction with the Defendant Bulgaria connected to the province and
the plaintiffs.
[46]To establish a nexus to British Columbia the plaintiffs had included in the said four volumes
numerous third party affidavits, together with their documentary evidence, that provided
sufficient, prima facie evidence of a case fit for trial. It was emphasised to the defendant
Bulgaria's Vancouver counsel that any hearing must require not less than one, and possibly
more than a day.
[47]At the hearing (August 24th 2001) the SCBC Registrar, as promised, placed before the Master
the Speaker's four (4) volume Factum, and appendices of contracts, affidavits and other
evidence.
[48]The Speaker, as Plaintiff/Respondent, faxed a Notice of Motion to the presiding Master
scheduled for the August 24th hearing. The petitions to the Master may be summarised as the
following:
6. To order the Defendant Bulgaria to agree to conduct in custody the Plaintiff
Kapoustin (the Speaker), as the respondent to its motion, to the hearings. The issue
of costs to be agreed between the parties.
7. In the alternative to grant leave to a person deprived of his liberty by the
defendant/applicant Bulgaria to have his applications spoken to in writing. The court
so ordering until such time as the defendant government of Bulgaria agrees to allow
an escorted conduct of its prisoner to hearings before the courts of law in Vancouver.
8. To accept the 4 Volumes of the factum, and the affidavits and other exhibits placed
into evidence by the plaintiff in response to the defendant Bulgaria's simpliciter and
forum non conveniens applications.
9. To first hear the plaintiffs' cross applications to set aside the defendant Bulgaria's ex
juris service of documents on plaintiffs in Bulgaria. Plaintiffs relying on Rules 13
and 14, and the Hague Convention as previously cited.
10. To order joinder of three SCBC Vancouver Registry law suits, C974299, S004040
and S005440 where the defendant Bulgaria is named as defendant.
11. To grant leave to the plaintiffs to amend their claims, adding the Ministry of the
Attorney General of British Columbia as a defendant, plaintiffs relying on the Crown
Liability and Proceedings Act R.S., 1985, c. C-50, s. 1; 1990, c. 8, s. 21.
[49]After inspecting the three volumes of the Speaker's materials the Master adjourned the matter
generally and advised counsel for the defendant Bulgaria to fix a full day to hear its
applications.
[50]The Speaker regularly enquires of the defendant Bulgaria and its legal counsel. Such written
enquiry includes a request to the said defendant in co-operating to fix a date and prepare a
joint filing of materials to be placed before a Master at the next hearing.
[51]As of the date of this Memorandum no reply has been forth coming from the defendant
Bulgaria or its counsel in Vancouver. The defendant Bulgaria continues to refuse to reply to
the plaintiffs correspondences. It remains not only uncooperative but actively obstructive of
the Speaker in his efforts to provide full answer in response to its originating jurisdiction
motion.
[52]The issues raised by the defendant Bulgaria [jurisdiction simpliciter and jurisdiction forum
non conveniens] remain outstanding before the trial court. These issues are relevant to the
intended appeal although not the subject of it.
1.5. Present Applications At Bar
[53]It can be seen from the correspondence with the Registrar of the Appeal Court and the
Speaker's notice of motion that he is at this present time petitioning the Appeal Court for
orders; (1) extending the time for him to appeal; (2) accepting his indigence application and
granting him the appropriate relief, and; (3) giving leave to appeal the order of the Duty
Master.
[54]This Speaker seeks leave to appeal, an order he believes to be an error in judgement, and a
practice and procedure of the SCBC he believes to be discriminatory on its application to an
indigent person deprived of his or her liberty as follows.
[55]It is asserted there exits a constitutional question to be answered by the Appeal Court. The
controversy arises over what is alleged to be the discriminatory affect (as opposed to intent) of
a practice and procedure under the Court Rules Act [RSBC 1996] Chapter 80, Rules of Court
(Rule 41(16.5)(a)) acting to unreasonably limit the legal rights of all indigent person deprived
of their liberty solely because they are indigent and deprived of their self-determination.
[56]The impugned practice and procedure in question places a reverse onus on the affected party,
requiring persons belonging to a distinct group and having a visible disadvantage, i.e.
deprived of their liberty, to secure their own appearance at any hearing before a Master of
Chamber Judge, or alternatively, although indigent, to secure at their own expense
representation by legal counsel.
[57]Until the affected person meets the courts reverse onus, the impugned practice and procedure
is to deny members of the disadvantaged group their right under law to prosecute or defend
their legal and property interests in a law suit.
[58]The Master's order must be, as a consequence of the foresaid, is unreasonable, and therefore
the Chambers Judge decision wrong. The order and decision have the practical effect of
limiting a fundament right protected in law solely because one litigant is incarcerated and
indigent.
[59]The discriminatory affect of the impugned practice and procedure is further aggravated by the
Respondent Bulgaria's uncooperative conduct and observable refusals to respect its
international treaty obligations or the processes of a court of Canada.