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THIS EXAMINATION CONSISTS OF 5 PAGES
PLEASE ENSURE THAT YOU HAVE A COMPLETE EXAMINATION
THE UNIVERSITY OF BRITISH COLUMBIA FACULTY OF LAW
FINAL EXAMINATION DECEMBER 2011
LAW 325 CONFLICTS
SECTION 1 PROFESSOR EDINGER
TIME ALLOWED: 3 HOURS PLUS 10 MINUTES READING TIME
TOTAL MARKS: 100
Note: this is an open book examination. Students may bring in and use their notes
In any conflicts problem, as in any case, there may be too little or too much
information given. Do not assume, therefore, that every fact is relevant and do
state, where necessary, what other information would be required and for what
25 1. You have been retained by Dr. Gunnar Paulsson [Paulsson], an untenured
member of the Slavonic Studies Department at UBC. Paulsson commenced an
action in defamation against Dr. Leo Cooper [Cooper] and the Slavic Review
[Review] in connection with a book review written by Cooper and published in
Cooper and the Review each filed a jurisdictional response pursuant to Rule 21-
8(1) of the B.C. Civil Rules. At trial they each argued that British Columbia had
no territorial jurisdiction and that it was forum non conveniens. The trial judge
held that there was no territorial jurisdiction and, therefore, no need to consider
whether B.C. was an appropriate forum for the action.
Paulsson, a Canadian citizen, has been teaching at UBC since September 2007.
He moved to B.C. from Sweden with his family when still a child. From 1994 to
2006, he lived abroad while attending Oxford University on a Commonwealth
scholarship and lecturing at English universities. His doctoral dissertation won
awards. A revised version of the dissertation was published by Yale University
Press in 2006. The book review which Paulsson claims is libelous appeared in the
Review in January 2007. Paulsson claims that the book review defames him as a
scholar, has damaged his academic reputation and has prevented him from
advancing in his academic career at prestigious universities to which he has
applied for positions.
The Review is published by a non-profit organization located at the University of
Melbourne in Australia. Cooper is a U.S. citizen and a full professor at the
University of Illinois in the United States. The Review still is not published
electronically but, of the 3000 copies printed of the 2007 issue, 51 were sent to
libraries in B.C.
Applying the eight criteria set out in Muscutt v. Courcelles, 2002 ONCA, the trial
judge held that Paulsson had not established that a real and substantial connection
existed between B.C. and the action. He found that Paulsson was not in B.C. at
the time of the publication and he commented on the fact that the distribution of
the Review in B.C. was minimal and that no evidence had been adduced that
anyone in BC had read the book review. He held further that it was very doubtful
that the Illinois courts would recognize and enforce a B.C. libel judgment against Cooper in light of the U.S. Securing the Protection of our Enduring and
Established Constitutional (SPEECH) Act, an Act making foreign libel judgments
unenforceable in the U.S. unless they are found by U.S. courts to be compliant
with the U.S. First Amendment
Paulsson wants to appeal. Consider the facts and the summary of the trial
judgment above and then set out the argument, if any, which you can make on
Paulsson’s behalf to persuade the Court of Appeal that the B.C. courts have territorial jurisdiction and that B.C. isforuin conveniens.
25 2. The Ontario Civil Remedies Act, S.O. 2001, authorizes Ontario courts to make forfeiture orders vesting in the Attorney General of Ontario all property of an individual which has been “acquired, directly or indirectly, in whole or in part, as
result of unlawful activity.” An unlawful activity is defmed as “an offence under
an Act of Canada, Ontario, or another province or territory” or “any other
jurisdiction in the world if the activity would be an offence if committed in Ontario.” (The Civil Remedies Act was held to be a constitutionally valid provincial statute in Chatterjee v. Ontario, 2009 SCC 19.)
1.B.Badd is a very wealthy former lawyer, ordinarily resident in Ontario, whom authorities in many jurisdictions suspect acquired his wealth by unlawful activities including fraud but who has never been convicted of an offence in Ontario or anywhere elsewhere. Badd owns a condominium at Whistler, B.C. Pursuant to the Civil Remedies Act, an Ontario court makes an order vesting
certain of Badd’s properties, including the condominium at Whistler, in the Attorney General of Ontario. The Act provides that the application for forfeiture can be made without joining the owner as a defendant. Badd was not notified of the application.
Badd retains you to protect his ownership of the Whistler condominium. What arguments, if any, can you make to persuade the B.C. court to refuse recognition
to the Ontario order?
Would it make any difference to your answer if the Ontario court had ordered Badd to convey the property in B.C. to the Ontario Attorney General?
25 3. Simon Sayers [Simon], a Canadian domiciled in B.C., was hired by International Drilling Co. NV [International Drilling] to work on its oil rigs which are located in various countries. The contract was made in London, England, where Simon happened to be visiting when he saw the job posting. Simon was first sent to work on an oil rig in the North Sea but then was transferred to an oil rig off the coast of Nigeria in Nigerian territorial waters. Shortly after arriving on the oil rig off Nigeria, Simon was seriously injured through the negligence of his fellow employees. He is still recovering at home in B.C.
International Drilling is a company incorporated in the Netherlands. The head office is located in the Netherlands but the company also has offices in several
other jurisdictions, including one in British Columbia. Its employees on the oil rigs are of many different nationalities. All employees sign the same contract.
The contract with Simon was written in English and payment was to be in U.S.
dollars. Payments were deposited directly into an account in a B.C. bank. Clause
8 of the contract stated that the contract was to be entirely performed outside the
Netherlands and that if an employee suffered accidental injury in the course of
employment, he would be paid benefits under a compensation plan maintained by
the Dutch employer in substitution for and satisfaction of all rights. The clause
required the employee to state that he had read and understood the compensation
Simon was paid benefits pursuant to the contract but when the benefits ceased, he
decided to bring an action in B.C. against International Drilling claiming damages
for negligence. Simon argued that the proper law of the contract was English and
that, by English law, clause 8 was void. Section 1(3) of the Law Reform
(Personal Injuries ) Act, 1948 (UK) reads:
Any provision contained in a contract of service or apprenticeship. . . .shall
be void so far as it would have the effect of excluding or limiting any
liability of the employer in respect to personal injuries caused to the
person . . .by the negligence of persons in common employment with him.
International Drilling admitted that Simon’s fellow employees had been negligent
but it argued that the proper law of the contract was Dutch and that clause 8 in the
contract was a complete defence. The defendant’s expert in Dutch law informed
the court that although the Netherlands Civil Code contains a provision (art.
1638X) which is very similar to the English provision relied on by Simon, that
Dutch courts do not apply that provision to international contracts. She stated
that the contract between Simon and International Drilling would be classified as
an international contract and that clause 8 would, therefore, be held to be valid by
a Dutch court.
Neither party suggested that the proper law of the contract might be Nigerian and
no-one provided any evidence as to the law of Nigeria.
Write the judgment.
25 4. J3ora died resident in B.C. but the parties agree that he was still domiciled in
Malta. A wealthy man at the time of his death, he owned immovable property in
B.C. and movable property in B.C. and in Malta. Bora married very young but he
and his wife, Agnes, were childless. Apart from bequests to his two brothers and
to a few charities, Bora left everything to “my wife.”
One of Bora’s brothers is challenging the validity of the will. He clai ms that he
and his brother are entitled to inherit Bora’s estate because Bora had n o wife.
Agnes, he asserts, was not Bora’s wife.
Agnes retains your firm. The file which has been handed to you co ntains the
Agnes and Bora were first cousins. They were both domiciled in Gre ece at the
time of their marriage but they were Turkish citizens. The marri age was
celebrated in Malta because Agnes’ parents refused to give their consent to the
marriage. Bora’s parents were also opposed. Bora was 18 years old but Agnes
was only 15 years of age. They went through a civil ceremony in Malta a nd then
they returned to Greece. Two years passed and their parents were st ill not
reconciled to their marriage so they moved to Malta. Ten years ago they
emigrated to B.C. but they continued to make frequent trips to Greece and Malta.
Just before Bora died, both became Canadian citizens although they both retained
their Turkish citizenship.
The law of Malta requires that the parties to a marriage have both a civi l and a
religious ceremony. However, first cousins are free to marry each other and
parental consent is not required for anyone over the age of 15 years.
Turkish law prohibits marriages between first cousins and considers that either a
civil or a religious ceremony is legally sufficient. Greek law permits first cousins
to marry but prohibits marriage between persons under the age of 16 w ithout
parental consent. A civil ceremony is required in Greece.
The laws of Malta, Greece and Turkey apply the law of the nationality to
determine all issues arising in connection with the validity of a marriage.
Because you are a Conflicts expert, you have been asked to draft a memorand um
setting out the arguments which Agnes can make to persuade the B.C. court that
she is the wife of the testator.
END OF EXAM