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Court rejects attempt to blame articling student for delay

|Written By Yamri Taddese

Highlighting the relationship between lawyers and their articling students, a Superior Court master, in upholding an order dismissing a personal injury action as abandoned, has taken issue with a law firm that laid blame on a student with mental-health issues.

‘I think the vast majority of people understand that students are there to assist you with your work,’ says Jeremy Martin.

The student “was, after all, a student, and one who was not well, a fact known to his firm,” wrote Superior Court Master Joan Haberman in Nadarajah v. Lad on Feb. 10.

“It is the firm that has carriage of the action and lack of activity by the firm, not simply the student, is the critical factor and where the court’s focus must be.”

Haberman found the personal injury case had been subject to delay from the outset and not just in the few months the student was at the firm. The student’s involvement “amounts to a small part of what went wrong here and why,” wrote Haberman in rejecting a motion to set aside the dismissal.

The articling student had substance abuse problems, the court heard, and after resigning from the firm in March 2012, he “sadly took his own life in July 2012.”

According to Haberman, lawyer Paul Wilkins, who at the time was working at personal injury law firm SLS PC, said it was the firm’s practice to have articling students keep track of cases to ensure the court didn’t dismiss them for delay.

During cross-examination, Wilkins was asked what systems the firm had in place in terms of a diary or a ticker system to stay on top of dates. “. . . We gave it to the articling students, that was the system,” he responded.

“There is no evidence that Wilkins had any system for keeping track of the Rule 48 deadlines,” wrote Haberman.

“In fact, his evidence when cross-examined is clear: there was no system for keeping track of these deadlines.”

The firm assigned the student, identified in the ruling only as AS, to deal with all incoming notices of dismissal and dismissal orders, according to Wilkins, who told the court the student was “largely unsupervised in this assignment.”

Wilkins tells Law Times he’ll appeal the master’s decision. “I have no comment as this is a subject of an appeal,” he says.

James Srebrolow, a partner at SLS PC, says it wasn’t a firm-wide practice to have articling students keep track of limitation periods without supervision. “Effectively, we’re blamed by Mr. Wilkins for what happened, saying this is how the firm practises. I’m saying no, this is how the firm for that file practised because Paul Wilkins was the member of the firm,” he says, adding the firm still accepts responsibility for what happened in the case.

“[Wilkins] worked for the firm. We should have had more control in place vis-à-vis his practice. We didn’t. We, collectively the firm, missed the boat on this one, no doubt about it.”

If a lawyer or a firm is relying on a student’s diary to keep track of court notices, “then they’ve got problems,” says Gilbertson Davis LLP lawyer Lee Akazaki.

Akazaki also says the pressure of managing notices is a stressful and repetitive duty for students. “I would say that giving students the sole and unsupervised responsibility to deal with court notices and court deadlines is, apart from the practice-management problems, to immerse the students in an unduly stressful environment,” he says.

“Broadly, this case can show you that if you provide your articling students with repetitive and excessively stressful work . . . it will lead to an unhealthy law firm environment,” he adds.

Cassels Brock & Blackwell LLP associate Jeremy Martin, who mentors articling students, says it’s an “exceptional practice” to rely on unsupervised students to keep track of court notices.

“I’d be very surprised if that was anything but an extreme rarity,” says Martin.

“I think the vast majority of people understand that students are there to assist you with your work. They’re not there to do your work for you.”

While the ruling makes no suggestion of what caused the student’s struggles, the case “flags the ongoing problems we’re having with any kind recognition for accommodation of mental-health problems in this profession,” he says.

“No matter where you’re articling, the stakes are so high, especially in litigation but also any kind of legal work, and the expectation is that everything is going to be detail oriented and perfect.

“There’s so much stress placed on students that if you are already suffering from substance abuse issues or if you have an anxiety disorder or anything like that, not only the expectation but the culture is also that you need to always say, ‘Yes, I can handle more work.’”

According to Haberman’s ruling, Wilkins said the firm had learned about the student’s substance abuse problems in November 2011, a short time after he received the assignment.

“At that time at the urging of the Law Society [of Upper Canada], he [the student] entered a rehabilitation program,” wrote Haberman.

“Wilkins does not discuss what became of AS’s time sensitive work. There is no indication that he took it back or reassigned it in his affidavit.”

  • Selwyn Pieters
    Reminds me of the situation involving the young, now disbarred lawyer, Jonathan Strug: Law Society of Upper Canada v. Jonathan Wade Strug, 2008 ONLSHP 88 (CanLII),
  • Victoria Lehman
    At least James Srebrolow ultimately admitted to this gross negligence on the part of the firm. Maybe in days of yore, "...it was the firm’s practice to have articling students keep track of cases to ensure the court didn’t dismiss them for delay" provided some "plausible deniability" or excuse, to weasel out of such a lapse. Not these days by a long shot. But a dead student, yet? And dragging out substance abuse and mental health issues? "Omnes relinquite spes, o vos intrantes".
  • Marion Howard
    When I articled many, many years ago, a litigation lawyer in the firm forgot about a trial set for a date he decided to go skiing with his buddies. He called me at the last minute from the ski hill to tell me to attend at the court house to ask for an adjournment. The JP refused and forced me to conduct the defense of the accused (who wasn't even informed of the trial date) - it was only a motor vehicle offense but important to the accused who was a professional driver. Obviously with no preparation time and a good defense tactic that all went sideways when the accused showed up and insisted on testifying, the case was lost. Imagine my anger when I overheard the lawyer the next day shouting into the phone to whoever that his "stupid articling student screwed up his calendar" and that's why he missed the trial. What the hell? I didn't keep his calendar. Didn't even know where it was. He had no remorse and no apologies when I spoke to him about it. Damn I hated that job!!!!
  • Albin Foro
    One hopes the client has effective recourse against this firm.
  • Brian Francis
    Blaming a dead student for the firm's failings is a new low for the personal injury bar.
  • V Bajpai
    Mr Francis, the blame rests on the articled student's principal and it appears that the firm does acknowledge it's fault in this. Your suggestion that this "is a new low for the personal injury bar" is ridiculous.
  • brian francis
    “In fact, his (Wilkins ) evidence when cross-examined is clear: there was no system for keeping track of these deadlines.”...”James Srebrolow says it wasn’t a firm-wide practice to have articling students keep track of limitation periods without supervision. “Effectively, we’re blamed by Mr. Wilkins for what happened."

    We have Wilkins saying there was no firm-wide system for keeping track of deadlines – and we have Srebrolow blaming Wilkin’s and implying that the firm (but for Wilkins) does in fact have a firm-wide system for keeping track of deadlines (other than downloading the job to students). Conspicuously absent from Srebrolow’s assertion is any description at all of what comprised the firm-wide system. This omission doesn’t inspire confidence.
    With all due respect, your trivializing of the mistreatment of this student coupled with your uncritical acceptance that (but for Wilken’s) the firm’s tracking system was good-to-go; is what is “ridiculous”.
  • V Bajpai
    You miss the point again Mr Francis.
  • brian francis
    What point is that? Seems to me that the take-away lesson here is that firms that don't invest in a decent tickler system are putting their clients' claims at risk for dismissal for delay. This case is sadder than most dismissals for delay. A law student was victimized - and so was the firm's client.
    Precisely what "point" is it that I'm missing which trumps those two points.
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