International Contracts & Jurisdiction: Case Study on Voyageur Canadian Tours & Roboplunge, Exams of Law

Download International Contracts & Jurisdiction: Case Study on Voyageur Canadian Tours & Roboplunge and more Exams Law in PDF only on Docsity! THIS TEST CONSISTS OF NINE (9) PAGES PLEASE ENSURE THAT YOU HAVE A COMPLETE PAPER THE UNIVERSITY OF BRITISH COLUMBIA FACULTY OF LAW FINAL EXAMINATION - APRIL 2012 LAW 325 (Conflict of Laws) Section 002 Professor Joost Blom MARKS: 100 TIME ALLOWED: THREE (3) HOURS (INCLUDING READING TIME) **** * * * * * * * NOTES: 1. This is a limited open book examination. You may bring into the examination room the required casebook and any supplementary materials, class handouts, and notes and summaries you have made yourself. No other books or reference materials, whether originals or copies, in hard copy or electronic, may be used in the examination. 2. Please answer all four (4) questions. 3. If you think you would need more facts in order to answer any question fully, please indicate what those facts are. LAW 325, Section 002 Page 2/9 MARKS 30 1. Diana, a resident of Lower Chipping, England, in the United Kingdom, books a skiing holiday for her, her partner and their daughter at the Radiant Peaks resort in the Rocky Mountains in BC. She books it online from their home, via a website operated by Voyageur Canadian Tours Ltd. (Voyageur), which is based in Montreal, Quebec, but markets its tour packages mainly in the United Kingdom via the Internet. The packages, when booked from the UK, include air fare to the relevant destination. Voyageur offers these packages for holidays in a variety of Canadian vacation sites in BC, Alberta, Ontario, Quebec, Nova Scotia and Prince Edward Island. Voyageur does not, however, have any office or agent for service in BC. When a customer books a tour online, she or he must click a button that says, “I have read the terms of this contract and I accept them” to indicate acceptance of the terms of the contract, which can be called up on the computer. Diana did click “accept”, although she never clicked on the button that said, “Click here to see contract terms”. Diana is a barrister and figures it’s better not to read the terms, since then you’re stuck with them for sure. The terms of the online contract, which are in English, contain no choice of law clause but do have a clause that the customer “agrees to attorn to the jurisdiction of the courts of Quebec in any dispute arising herefrom”. Customers pay by credit card. All Voyageur’s prices are displayed both in Canadian dollars and in pounds sterling (UK currency), and the customer can opt to be charged in either currency. Diana and her family travel to Radiant Peaks from England and have a most enjoyable holiday until, unfortunately, Diana falls and fractures her leg and ankle severely. After an initial spell in a local hospital, Diana flies back to the UK to complete her convalescence. Diana is a very successful barrister and her injury prevents her from working for many months, resulting in a loss of income of the equivalent of $300,000 (Cdn.). Diana also has a great deal of pain and suffering. Diana brings an action in British Columbia Supreme Court in tort against Radiant Peaks Resorts Ltd. (Radiant), the British Columbia company that operates the ski resort. She alleges it was their employees’ negligence that caused her accident. In the same proceeding she claims against Voyageur for breach of contract, namely, failing to select a safe ski resort. She alleges that Radiant has a history of poor safety and that Voyageur ought to have known that. LAW 325, Section 002 Page 5/9 (Question 2 Continued) of the continental shelf off northern Russia, has agreed to let Russian scientists examine the two vessels. This is a clear breach of the contract of sale by which Metallkraft agreed that the technology used in the vessels was the intellectual property of Roboplunge and was not to be disclosed to any third party. Roboplunge commences an action in the British Columbia Supreme Court, seeking damages and an injunction against further breaches. Metallkraft has no presence of any kind in British Columbia, although it has an office in Ontario. Metallkraft, which denies any breach, argues that the clause was not part of the contract. In addition, it argues that the case should be heard in Switzerland because the evidence of its dealings with the Russians is a commercial secret that, Metallkraft argues, will be more securely protected by the special in camera procedures available in a Swiss court than in a British Columbia court, where in camera proceedings (i.e. where nobody but the parties, their counsel, the judge and the court officials are present) are unlikely to be available. A British Columbia court would probably grant a publication ban with respect to any evidence given that would bind anyone attending the proceeding, but Metallkraft argues this is inadequate assurance that its secrets will remain secret. A week after Roboplunge commences its BC action, Metallkraft commences proceedings in Switzerland seeking a declaration that it had committed no breach, and claiming that the vessels had proved unsuitable to the Arctic conditions and claiming the equivalent in Swiss currency of $8 million (Cdn.) damages for the losses caused by the deficiencies. Before the British Columbia court decides the jurisdictional issues, the Swiss court rejects Roboplunge’s argument that the agreement to litigate in British Columbia should be enforced. By Swiss law the omission of the clause from the contract, even if accidental, was fatal to any enforcement of the clause; it was simply not part of the contract. (a) (worth 12 marks) Discuss Roboplunge’s position with respect to having the British Columbia court take jurisdiction over its action against Metallkraft. (b) (worth 18 marks) Assume that the British Columbia court decides to take jurisdiction but Metallkraft withdraws from any further role in the proceedings. Assume further that, after losing the jurisdictional argument in Switzerland, Roboplunge withdraws from any further role in the Swiss proceedings. Before the British Columbia court gives LAW 325, Section 002 Page 6/9 (Question 2 Continued) judgment in default of appearance, the Swiss court does so. It declares that Metallkraft is not liable in any way to Roboplunge and holds that Roboplunge is liable to Metallkrafl for breach of contract, the damages being the equivalent of $8 million (Cdn.). Discuss Roboplunge’s legal position in these circumstances. MARKS 25 3. Scarlett lives with her husband and two children in Pitt Meadows, BC. They are in difficult fmancial circumstances; Scarlett’s husband Rhett was recently laid off from his job and Scarlett works part-time as a dental receptionist. About three years ago she learned that her Aunt Pittypat, who lived in California, has died. She was always Aunt Pittypat’s favourite and Aunt Pittypat, who was well to do and had no spouse or children, had promised to leave Scarlett the bulk of her estate. She had made a will to this effect but unfortunately, owing to the apparent negligence of Aunt Pittypat’ s lawyer, Wilkes, the will was invalid and the estate passed to Aunt Pittypat’s two siblings under the intestacy rules. Scarlett wants to sue Wilkes, the lawyer, in British Columbia; she lacks the resources to bring an action in California but a local lawyer, a friend of Scarlett’s, has offered to bring the case in the British Columbia Supreme Court on a contingency basis. Under the law of British Columbia, a lawyer who negligently fails to ensure that a will is valid is liable in the tort of negligence to the beneficiaries who would have inherited if the lawyer had not been negligent, i.e. if the will had been valid. Under the law of California there is no tort duty of care owed to the beneficiary. The negligent lawyer’s only possible liability is to the estate, which has lost nothing. Under the law of British Columbia the limitation period for such an action is six years, but under California law it is two years, unless the defendant waives the protection of the limitation period. In the absence of such a waiver, Scarlett’s claim would be statute-barred under California law but is still in time under British Columbia law. If Wilkes does not submit to the British Columbia court’s jurisdiction, any judgment in Scarlett’s favour will not be enforceable in California, but if he does LAW 325, Section 002 Page 7/9 (Question 3 Continued) defend the action the judgment will be enforceable. Scarlett and her lawyer hope that the bad publicity from being successfully sued in British Columbia will induce Wilkes (and Wilkes’s liability insurer) to defend the action in British Columbia. Discuss the conflicts issues that arise. MARKS 15 4. While on holiday in Florida, David meets and falls in love with Bruce, who has lived all his life in North Dakota, USA, and was also on holiday in Florida. They decide to get married. Same-sex marriage is not possible in Florida or North Dakota. David and Bruce intend to live in North Dakota, at least for the time being, but they get married in Vancouver, David’s home town. After an extended honeymoon they return to live in North Dakota. Although same-sex marriage is not possible in North Dakota, the North Dakota conflicts rule is that capacity to marry, like formalities, is to be decided according to the law of the place of celebration. The North Dakota courts have not yet decided whether same-sex marriages will be recognized under this principle or whether, as some argue, public policy will intervene to prevent recognition. After about three years, David and Bruce separate and decide they want to end their marriage. David returns to Vancouver, and, a few weeks after his return, consults you about what he or Bruce can do to end the marriage. Advise David as to the conflicts aspects of the couple’s legal situation. Please discuss the issues in light of both the present Canadian law and the law as it will be if Bill C-32, currently before Parliament, is enacted and brought into force. The relevant provisions of the bill are as follows: 5. (1) A marriage that is performed in Canada and that would be valid in Canada if the spouses were domiciled in Canada is valid for the purposes of Canadian law even though either or both of the spouses do