1996 Exam

York University

Osgoode Hall Law School

Fall Semester Examinations - 1996

Conflict of Laws

Examiner - J. Walker

Time: 3 hours (plus a 15-minute break)

Part I

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 NOTE: THIS EXAMINATION PAPER MUST BE HANDED IN TO THE INVIGILATORS AT THE END OF THE EXAMINATION.

You have 90 minutes to complete all the questions on both sides of this page.
This part of the examination is worth 50% of the total grade.

1. Ms Buyer & Mr Seller are Syracuse businesspersons. They enter into a contract of sale in Syracuse governed by the local law in Syracuse in which delivery and payment are to be made in Syracuse. Ms Buyer has paid in full but wants to sue Mr Seller for failure to deliver the goods. He has never been to Ontario but he may have assets in Ontario. He is in financial difficulty in Syracuse. She would get higher damages in Ontario and he might be able to delay the action indefinitely if he is sued in Syracuse. Mr Seller is on his way to the South Pacific when his plane is diverted to Pearson. While waiting for another flight he is served with Ms Buyer’s Statement of Claim.

Consider each of the following questions independently of the others. Explain your answers and refer to authorities, statutory and common law, where this may assist.

a) Will the Ontario court be able to hear the matter?

b) Will the Ontario court decline to hear the matter if asked to do so?

c) Does it make any difference whether we are referring to Syracuse, New York or Syracuse, Greece?

d) What if the contract contained a term providing that "...all disputes may be submitted to a Syracuse court"?

e) What if a default judgment were obtained in Ontario but Mr Seller’s assets were in neither Ontario nor in Syracuse but in England. Would the judgment be enforceable in England? Again, would it matter whether we were referring to Syracuse, New York or Syracuse, Greece?

2. The Ruritanian Democracy and Solidarity Act has been enacted in the United States in an effort to oust the current Ruritanian government and punish foreigners who do business in Ruritania. The Act contains provisions permitting US nationals to sue persons who hold or use property expropriated by the Ruritanian government when it came to power several decades ago. Damages are determined by plaintiffs’ declarations concerning the net worth of the businesses they once operated on the premises of the expropriated properties. Damages may be tripled if the defendant has not heeded warnings to stop doing business relating to the property in question.

Your client, OntCo, an Ontario company with assets only in Ontario and Ruritania, and that does business exclusively in these two places, has just been served in Toronto with notice of a proceeding under the Act.

Consider each of the following question independently of the others. Explain your answers and refer to authorities, statutory and common law, where this may assist.

a) What should Ontco do about the notice of the proceeding?

b) Last year OntCo incorporated a subsidiary called DelCo in Delaware to sell its products into the US market. DelCo has no fixed place of business but engages travelling salespersons to market Ontco’s products throughout the United States. Would this change your answer to question (a)? Why?

c) The ACME Rubber Zapata Company of New Jersey obtained a judgment under the Act for triple the amount of damages set at $10m(US) in connection with OntCo’s use as a storage shed of a ramshackle warehouse on the outskirts of Ruritania City in which rubber boots were once made. It has brought an action for enforcement of the $30m(US) judgment in Ontario. On what bases will Ontco resist the enforcement of the judgment? Is Ontco likely to succeed?

York University

Osgoode Hall Law School

Fall Semester Examinations - 1996

Conflict of Laws

Examiner - J. Walker

Part II

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 NOTE: THIS EXAMINATION PAPER MUST BE HANDED IN TO THE INVIGILATORS AT THE END OF THE EXAMINATION.

You have 90 minutes to write an essay on one of the following questions.
This part of the examination is worth 50% of the total grade.

1. The burden of proof in motions for stays based on forum non conveniens has been a focal point for debate in recent jurisprudence in Canada. The debate has been particularly lively with respect to the placement of the burden in cases of service ex juris in which the local rules of court do not require leave. Who currently bears the burden in such a motion brought in an Ontario court? Who should bear the burden? Why? Your answer should reflect relevant precedents (binding and non-binding) and your own views of the implications of the various alternatives.

2. Why does section 36(2) of the Succession Law Reform Act refer specifically to the internal law of the place where the testator was domiciled at the time of his or her death? What other options were available to Ontario legislators? Are there other areas of the law in which these options might be more suitable? Your answer should reflect relevant precedents (binding and non-binding) and your own views of the implications of the various alternatives.

York University

Osgoode Hall Law School

Fall Semester Examinations - 1996

Conflict of Laws

Examiner - J. Walker

Optional Pre-Written Essay Question

Write a 1500 word essay on one of the questions below. Any portion beyond 1500 words will not be read. Abbreviated case names will suffice for citations.
You need refer only to the course materials and lectures. Additional references will not be considered.
Do not consult with classmates or others.
Submit your essay in accordance with the instructions given at the examination.

1. In its 1990 decision in Morguard, the Supreme Court of Canada held that the traditional rules for enforcing judgments were unsuitable for the Canadian federation. Identify other traditional rules in the conflict of laws which you regard similarly unsuitable and explain how you would modify them to suit the Canadian federation.

2. In connection with the general rule for choice of law in tort established in Tolofson, La Forest J. noted that "[d]ifficulties may also arise where the wrong directly arises out of some transnational ... activity". Identify instances in which this is true and explain the difficulties. To what extent do sections 11-13 of the Private International Law (Miscellaneous Provisions) Act 1995 (UK) address these difficulties and what other measures might be appropriate?