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.

Geos, an Ontario resident, entered into an employment contract in Toronto with Hudon, a Sudanese company, to teach English in Sudan. The contract contained a choice of law provision specifying that it was governed by Sudanese law and a provision under which Hudon would arrange health insurance for Geos while she was working for Hudon in Sudan. The insurance policy obtained by Hudon for Geos was also governed by the law of Sudan.

During a break from teaching, Geos visited Chad where she was seriously injured in a car accident. She was brought back to Toronto in a coma. She received some benefits from the health coverage arranged by Hudon but she thought that the terms of her employment with Hudon should have entitled her to full indemnity. Geos sued Hudon in Toronto. Hudon is served in Sudan. She was in no condition, physically or mentally, to litigate in Sudan.

1. a) Will the Ontario court be able to hear the matter? On what basis?
(4 minutes - 2 marks)

b) What factors will the Ontario court consider if asked to stay the matter on the basis that it is an inappropriate forum? How should it decide? (6 minutes - 3 marks)

c) Answer questions (a) and (b) substituting Québec City, Los Angeles and London, England for Toronto, wherever it appears, in this scenario. (18 minutes - 9 marks )

2. Suppose that the Ontario court refuses Hudon’s motion to stay the proceedings, but before the court has ruled on the motion, Hudon commences an action in Sudan. Hudon seeks a declaration that it is not liable to Geos under the employment contract because she was injured while she was abroad on vacation. If Geos responds by moving in her Ontario action for an injunction to prevent Hudon from pursuing its action in Sudan,

a) On what grounds would Hudon say that Geos should not be granted the injunction? (6 minutes - 3 marks)

b) How do you think the court should decide? (4 minutes - 2 marks)

c) Should the previous ruling of the Ontario court (refusing a stay) affect the result? Would your answer differ if Manitoba was substituted for Sudan in this scenario?
(8 minutes - 4 marks)

3. Suppose that the Ontario Court grants Geos an injunction and Hudon appeals, but, while the appeal is pending, Hudon obtains its declaration from the Sudanese courts.

a) What effect, if any, should the Sudanese declaration have on Geos’s Ontario action? (6 minutes - 3 marks)

4. Suppose that Geos is granted an injunction and the matter proceeds only in Ontario.

a) What law should govern questions of Hudon’s liability? (8 minutes - 3 marks)

b) What factors might operate to restrict the application of that law?
(6 minutes - 4 marks)

5. Suppose that Sudanese law is held to govern liability. What if the declaration of non-liability that Hudon had sought from the Sudanese court had not, in fact, been made in Hudon’s action but in an action by another Sudanese company in a situation identical to Hudon’s?

a) How could Hudon present this as part of its defence?
(8 minutes - 4 marks)

6. Suppose that, instead of entering a defence, Hudon takes no further part in the Ontario proceedings beyond its motion to stay the proceedings and Geos gets a judgment for $10.5 million only to find that Hudon’s assets are located elsewhere.

(a) England? (8 minutes - 4 marks)

(b) Québec? (8 minutes - 4 marks)

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.

1. Do we need the "flexible exception" to the application of the lex loci in choice of law in tort?

2. Article 21 of the Brussels Convention and section 5(1)(b)(i) of the Jurisdiction of Courts (Cross-Vesting) Act, 1987 (Australia) both provide means of resolving situations of multiplicity of actions. In drafting legislation for the Canadian federation which model would you follow? Are there any variations you would recommend?

1. 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.
2. You need refer only to the course materials and lectures. Additional references will not be considered.
3. Do not consult with classmates or others.
4. Submit your essay at the end of the first part of the Examination as instructed by the invigilators.

1. Suppose a plaintiff, about whom the Globe & Mail (a national newspaper) had published some scurrilous gossip, is seeking to take advantage of a highly favourable rule in the relevant law of Prince Edward Island over the relevant law of the other provinces by commencing her action for defamation in Prince Edward Island. Following the approach suggested in Tolofson, how would our conflict of laws rules operate to curb forum shopping in this situation? How would this approach differ from the approach taken under the Brussels Convention? How do you account for the difference?

2. One American scholar has written of American conflict of laws: "The problem of defining constitutional limits on adjudicatory jurisdiction can be seen as merely an example of the more general problem... : what contacts or connections must have a state have with a particular dispute to apply its law?" To what extent would this approach assist in understanding Canadian conflict of laws?