TERM ASSIGNMENT

Assignments should be prepared in Word format (or appropriate alternative) double spaced. Collaboration with other students is encouraged, but each assignment must, in accordance with academic policy, be the student’s original work. Answers should contain sufficient detail and reference to course materials. You may make your own inferences where you feel it is necessary if the facts below are incomplete to support the position you choose to take.

 

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Saint Mary’s University jointly runs a dual degree program with the Beijing Normal University at Zhuhai. In order to do so, Saint Mary’s provides faculty to instruct in China. For the spring session scheduled to run from April 22nd to May 31st, 2019 Saint Mary’s had an individual prepared to instruct this course. This person entered into a contract with SMU which stated in part that the individual would instruct in China during the entirety of the spring session, but said nothing about cancellation by either party. At some point on or about late February, this individual advised Saint Mary’s that they would not be able to come to Zhuhai. Assume for the purposes of this assignment that the individual had been diagnosed with cancer, and was unable to travel.

In or about early March Professor Scott had been offered and had accepted a position as the new instructor by Saint Mary’s. A contract was entered into that included, among other things, clear instructions that he would need to secure the appropriate Visa that would allow him to travel to Zhuhai. As time was tight (in legal terms we say that time was of the essence) Scott was encouraged to go ahead and book flights and make the necessary arrangements in order to be in China to start classes on April 22.

In Canada, the Chinese embassy is responsible for issuing appropriate Visas for travel to China. In order to facilitate the processing of applications, the embassy utilizes an independent company known as the Chinese Visa Processing Centre Limited…this company is a separate entity from the government and operates at arm’s length from the embassy. Applications are filled out online, and when complete, the applicant must print the application form and attend in person at the offices of the Chinese Visa Processing Centre where they pay a fee and also provide biometric scans that enable the embassy to conduct their work. The Chinese Visa Processing Centre essentially pre screens visa applications to ensure conformity with the established decision parameters. If there are readily apparent issues, for example an expired passport or things of an administrative nature, then the Chinese Visa Processing Centre will hold an application pending the correction of the issue by the applicant. The Processing Centre also states that applicants who cannot pick up their passport in person must provide a prepaid pre-addressed return envelope so that the passport containing the Visa can be returned to the applicant.

Scott prepared the online application form as advised. Given the type of Visa required, Scott needed a letter, known as the Foreign Expert Invitation Letter issued by the provincial government in Guangdong, China. Although this letter was not mentioned in the contract, Saint Mary’s represented verbally that they would secure the letter for Scott. Saint Mary’s did, in fact secure the letter, which was advanced to Scott via email on March 19. Having completed the application, and with the letter in hand, Scott flew to Ottawa to deliver the visa application.

Before that however, Scott had booked flights from Halifax to Zhuhai that would have him arrive in China on April 19 in time to begin classes on the 22nd. Scott was instructed to secure cancellation insurance on all flights. Scott did, in fact, pay for and receive a policy of insurance that clearly stated that it would cover the cost of flights cancelled due to medical emergencies or death, including medical emergencies or death to immediate family members of the insured party.

While sitting in the departure lounge awaiting his return flight to Halifax, having attended at the Visa Processing Centre as required Scott received a telephone call from the Chinese Visa Processing Centre and was told that the embassy has already had a look at the Foreign Expert Invitation Letter. Scott was advised that the letter would not suffice because it lacked certain information, and also because it needed  to be issued by the appropriate government authorities in the Guangdong Province. The letter had actually been issued by the University, in accordance with past practice This issue had not been raised for previous applications.

As a result of this problem, it became impossible to travel as planned and Scott advised his travel agent that the flights would need to be cancelled or changed. Further, Scott and officials at Saint Mary’s decided that he should not rebook any travel until it was absolutely certain that the new letter could be obtained.

On April 19, Scott received a different Foreign Expert Invitation Letter and forwarded it to the Chinese Visa Processing Centre. They acknowledged receipt on April 22 and indicated that he should receive confirmation that the Visa had been processed by April 26.

With this new knowledge, Saint Mary’s and Beijing Normal University at Zhuhai amended the start date of the course to May 6.

On April 26, Scott received word that his Visa had been processed and his passport had been placed in the provided pre-paid, pre-addressed envelope and put in the mail. The expected delivery date was April 29. Unfortunately, on April 29 it was discovered that the passport had been delivered to any entirely different address, not in Halifax Nova Scotia, but in Mississauga Ontario, 2000 kilometres away. The address label on the envelope that had been purchased from Canada Post had been tampered with before it was sold. When it was placed in the postal system by the Chinese Visa Processing Centre, it had two different addresses, and Canada Post picked one but they picked the wrong one. When contacted by Scott, Canada Post officials advised that once the envelope had been placed in the mailbox of the receiver, it became the receiver’s property, and Canada Post could not recover it because this would constitute theft. They took no responsibility for the envelope, saying it was the buyer’s problem.

Fortunately the passport was located. The individual that had the passport said that he would return it if Scott came to get it at his home. When Scott travelled to the home, the gentleman said he would only return it if Scott paid a significant reward. At first Scott declined, but the gentleman indicated that he would call the police and state that Scott was trespassing on his property. Scott felt he had no choice, and so he complied and made the payment.

When Scott returned to his hotel with the passport, the rain started to fall heavily. The stone walkway at the front of the hotel was quite slippery, and unfortunately Scott fell and injured his shoulder. Hotel staff would take no responsibility for the injury, stating Scott should have been more careful as it was raining. A sign on the wall of the hotel indicated that the paving stones could become slippery when wet, and  patrons of the hotel were cautioned that the hotel accepted no responsibility for injuries. Unfortunately, the hotel concierge had left a luggage cart in front of the sign such that it was not visible.

 

  1. Identify from the facts above each of the following:
    1. One Tort
    2. One Contractual Issue
    3. One Sale of Goods Act Issue
    4. One Employment Law Issue

 

In your answer, you should clearly identify the issue with specific reference to course materials (ie Vicarious Liability, or Promissory Estoppel, or Defamation)** Fully develop your evaluation including identification and discussion of the elements of the issue, and the likely outcomes based on your assessment of the issues. For example, in paragraph one we learn that the original professor was diagnosed with cancer and was therefore unable to fulfill her contractual obligations. Would you identify this as a breach of contract, or frustration, or a force majeure, or perhaps something else? Why do you see the issue the way you do? What will happen based on the evaluation you make? You may not use this issue as one of your answers.

Explain why you choose a particular issue, and draw conclusions using the analytical model from Lesson 1 (see pg 3 in the text):

 

  1. Identify the issue
  2. Evaluate the issue
  • Make conclusions

 

** these are examples only of the types of legal issues. These types may or may not appear in the fact scenario.

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