In or about early March Professor Scott had been offered and had accepted a position as the new instructor by Saint Maryâ€™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 Limitedâ€¦this company is a separate entity from the government and operates at armâ€™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 Maryâ€™s represented verbally that they would secure the letter for Scott. Saint Maryâ€™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 Maryâ€™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 Maryâ€™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 receiverâ€™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 buyerâ€™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.
- IDENTIFY ALL THE POTENTIAL LEGAL ISSUES WITH REFERENCE TO THE MATERIALS COVERED IN THE COURSE. YOU MAY PREPARE YOUR ANSWER IN POINT FORM. NOTE ALSO THAT YOU ARE ASKED ONLY TO IDENTIFY THE POTENTIAL LEGAL ISSUES, SO A COMPLETE ANALYSIS IS NOT REQUIRED. (50 points)
- ASSUME YOU ARE A LAWYER RETAINED BY SAINT MARYâ€™S. ADVISE SAINT MARYâ€™S OF ALL OF THEIR RIGHTS AND OBLIGATIONS IF SCOTT HAD NOT BEEN ABLE TO SECURE THE VISA. (10 points)
- IDENTIFY, WITH REFERENCE TO RISK MANAGEMENT STRATEGIES, AREAS WHERE RISK WAS ENCOUNTERED AND HOW THE PARTIES DEALT WITH THE RISK. SPECIFY THE PARTICULAR RISK MANAGEMENT STRATEGY. (35 points)
- WOULD IT MAKE ANY DIFFERENCE TO YOUR ANALYSIS IF SCOTT WAS PAID OR IF HE WAS A VOLUNTEER? WHY OR WHY NOT? (5 points)