Candidates must fill in correctly the heading on the front of each booklet and envelope provided. Failure to do so may result in the answers not being read.

Please indicate your section on the front of the envelope

• This examination is open book.
• Please write on every other line of the examination booklets.
• Cases may be referred to simply by citing the name of a party.
• If you find ambiguity in a question, say so in your answer and make any reasonable assumption consistent with the facts given.
• If for any reason you cannot proceed, raise your hand and an invigilator will assist you.
• This examination is worth a total of 60 marks.
• This 7 page examination paper consists of:

Part I - (Questions 1-9), and

Part II - (one question).

Thursday morning. Giuseppe, a law student, was miserable. He tried again to ease himself out of bed. That gripping pain ... it had begun as a dull ache in his lower back and gradually radiated down his legs. No good. He had to face it. He could not stand up. The timing couldn't be worse. He had stuck it out to the end of term, gritted his teeth through the exams. But now it was the first week of his summer job at the law firm Bluster & Bragg and he couldn't get out of bed. Monday he had trouble getting to his feet to shake Ms. Bragg's hand and Tuesday he had to leave the strategy session in the boardroom early because of the pain of sitting in one place too long. Wednesday he had been forced to call in sick and go to the doctor. He was sure the firm would not understand his problem, that he was not a malingerer, that he was eager and hardworking.

The doctor had told him that he would probably have to spend several weeks in bed and on medication. The firm seemed sympathetic - but was that just a cover for "Don't bother trying to match with us for next year"? He saw his hopes for his future fading fast ... he would have to settle for a job paying less than six figures, maybe even pay for his own Bar-Ads. It was too horrible. "Those darn library chairs", he thought. "If it weren't for those chairs ...." Suddenly it dawned on him - the Darkpale Law Clinic was looking for claims. Why not call them?

"Darkpale Law Clinic. How can I help you?" you answer cheerfully as you pick up the phone...

Giuseppe instructs Darkpale to commence an action for the losses he has suffered from having to sit in poorly designed law library chairs. You suggest that he go with you first and speak to the Dean. After all, the Dean was at the meeting where student concerns with the chairs were discussed and he seems to be the one who could do something about it. When you arrive, he rises to greet you, grimacing in pain, his left hand on his back. "When it comes to furniture at the Law School", he explains "I just push the broom. It's the University Expenditures Committee who makes the decisions for the University. Besides, with all the cutbacks and demands on the Law School Budget, replacing those chairs is a low priority." Giuseppe is angry. He insists that you name the Dean and the University as defendants to the action.

How do you serve them?

(6 minutes - 3 marks)

As it happens, last year, Giuseppe sued the University for requiring first year students to purchase and lug around such heavy casebooks. He had claimed that, by the end of the year, his back was in constant pain and he was unable to carry out his duties as a research assistant for Professor Sloth, causing him to forfeit his summer income. In that action the University produced evidence showing that Giuseppe's back pain was a result of a pre-existing medical condition and the claim was dismissed. Giuseppe was ordered to pay the University=s costs but has not done so. The University feels it is unfair that it has to defend another claim involving Giuseppe's back.

Given the nature of the previous litigation with Giuseppe and the result reached, what steps might the University take to avoid the present litigation? What, if any, evidence could it rely on for support? On which legal principles would it rely?

(16 minutes - 8 marks)

The Statement of Claim is served on the defendants. Under the heading "Liability and Damages" there are only the following two paragraphs:

. . . .

Liability and Damages

21. The chairs in the library caused tremendous pain in the plaintiff=s back which led to serious problems.

22. The Law School got its terrible rating on the latest McBain's survey because it doesn't care about students.

. . . .

The solicitors for the University are concerned that it could be difficult to draft a response to the these allegations and the University is upset by the suggestion that the Law School is uncaring.

What steps might the University"s solicitors take to alleviate these concerns?

(8 minutes - 4 marks)

The Dean feels that he too is a victim of poor chair design. The University feels that it should not be held responsible for the students' back troubles because it is no more an expert in chair design than any other consumer. Upon reflection, the University feels that it is really Comfort Manufacturing Ltd., who made and supplied the chairs, and Itzah Mahaia, who designed the chairs for Comfort, who should be held responsible. It is unclear whether Comfort is still in business or is in any position to satisfy any judgment against it but it is registered as a Manitoba corporation with offices in Winnipeg. In 1968 when the chairs were supplied Comfort was regularly selling its products into Ontario. Itzah Mahaia is a successful British Columbia entrepreneur and recluse, who lives in Nanaimo, and who has never carried on business outside of that province. The Comfort chair designs were commissioned and completed in Nanaimo during a visit by Comfort's President there.

(a) Could the Dean seek recovery in this action for any injury he had suffered from sitting in the Law School chairs? How? (2 marks)

(b) How would the University go about asserting claims against Comfort and Mahaia? (2 marks)

                    (c) How would the University serve these two parties? (2 marks)

(d) Can these two parties object to being sued in Ontario? On what grounds? Are they likely to be successful? (3 marks)

                    (Total: 18 minutes - 9 marks)

In its Statement of Defence, the University pleads that the claim is statute barred given that the chairs were purchased in 1968. Comfort and Mahaia also plead that any claim against them is statute barred for the same reason -- the chairs were designed and supplied 30 years ago.

(a) Can these parties get a ruling on the validity of these contentions without going to trial?

(8 minutes - 4 marks)

The Student Council President Hope Warren, reads about Giuseppe's action in the student paper, the Ratio. Hope believes that all the students of the School should be compensated and that Giuseppe's action should be certified as a class proceeding. The excitement around the school builds. The CBC arrives at the Law School to interview you and Giuseppe. You become an instant celebrity. You go to consult your Civil Procedure instructor about how you might prepare an application to the Class Proceedings Funding Committee and your instructor informs you that there has been a call for you and Giuseppe from Harry Frothberg, the famous class actions lawyer you have heard about. Apparently he has had an offer from Obisfirm, the ergonomic chair specialists. They are prepared to fund the class action you are considering in return for Giuseppe's endorsement of their chairs.

Should you advise Giuseppe to accept?

If he did, who would be responsible for any adverse costs awards?

(8 minutes - 4 marks)

The University of Eastern Ontario Law School ("Eastern") and Backache Advocates & Defenders ("BAD") want to intervene in the action. Eastern uses chairs that are identical to those at issue in the action and fears a finding of liability may lead to lawsuits from its students. Eastern wants to introduce evidence of the extensive testing of the chairs that it did prior to purchasing them. BAD often intervenes in cases involving people suffering from back pain to ensure that this condition is treated as seriously as other debilitating illnesses. It proposes to argue that a finding of liability against the University will assist many other library users by requiring libraries to purchase ergonomically correct chairs.

Will Eastern and BAD be likely to be granted leave to intervene? In what capacity and on what basis?

(10 minutes - 5 marks)

After receiving the University's Affidavit of Documents, Giuseppe's lawyers at the Darkpale Legal Clinic notice that the University has referred to a safety report on library furniture prepared by an outside consultant three years ago. The University has claimed privilege for this report as it was produced in response to complaints from students and staff. The University's lawyers had been contacted when the initial complaints were received and the lawyers had retained the consultant and asked her to address the report to them. The purpose of the report was both to determine whether any problem existed, and if so, what remedial measures were warranted and, based on the foregoing, to determine if the complaints had the potential to result in litigation against the school.

Would this claim of privilege be likely to be upheld? Would the manner in which the report was commissioned and received affect the Court=s view of the claim of privilege?

                    (8 minutes - 4 marks)

The case has proceeded to oral examinations. You have asked to examine the University President on behalf of the University. The University wishes to substitute the Librarian for the President because the Librarian has direct knowledge of the purchase and installation of the chairs and has first-hand knowledge of Giuseppe's seating habits in the library.

Will the University be permitted to substitute the Librarian? Assuming the President is to be examined, can she be asked questions outside her personal knowledge and experience?

(8 minutes - 4 marks)

PART II (30 minutes - 15 marks)

Suppose the Premier of Ontario has just appointed you Special Advisor on Access to Justice. You must advise him on the best allocation of provincial resources for increasing access to justice. Prioritize any three of the following projects and explain your ranking:

(i) more money for the Class Proceedings Fund

(ii) establishing a block billing scheme to replace the billable hour

(iii) hiring more masters to institute comprehensive case management

(iv) more money for community legal aid clinics

(v) establishing a regulatory body to govern mediators

 

 

  

Copyright 1999 Janet Walker