Every so often comes along a decision that makes you pause and feel empathy for those involved – that is exactly what happened in Polgampalage v Devani. [1] The difference in this case is that the empathy being felt is for the Plaintiff’s lawyer, or more specifically, the articling student that drafted the submissions. What began as a routine motion for a change of venue ended in a crucial reminder to articling students and principals alike: it is extremely important to review and proofread your work.
The Plaintiff started this action in Windsor and requested an Order to move the proceeding to Toronto. What the Plaintiff failed to do, however, was provide any evidence as to why this relief was convenient (or even related) to the parties involved. There was nothing in the Plaintiff’s motion materials that explicitly linked the action with the City of Toronto, and if not for the prodding and research of Justice Myers, it would not have even been determined that the Plaintiff’s lawyers practiced in North York. As a result, there was no evidentiary basis to grant the relief being sought by the Plaintiff.
Justice Myers could have left it at that. Motion dismissed – next. Instead, he decided to use this Endorsement as a teaching point to young lawyers starting their legal careers. In addition to the lack of evidence put forward in the student’s affidavit, Justice Myers alludes to some common mistakes seen in motion materials such as using the passive voice, swearing evidence that is hearsay, and making argumentative submissions that are better reserved for a factum. While a judge may occasionally look the other way when motions have these “technicalities of the law of evidence” (especially when the materials are drafted by a student), one should not settle for mediocrity. The onus is ultimately on the drafter and their supervisor to ensure their motion materials are complete and devoid of any errors.
The key takeaways from this decision are two-fold. Firstly, it is a stark reminder that just because opposing counsel consents to your motion, does not mean that the relief you are requesting is a foregone conclusion. You still have to put in the work and make cogent arguments supported by evidence explaining why you are requesting the relief you seek. Secondly, and in the words of Justice Myers himself, “all students and lawyers also have independent duties to scrutinize with great care every word to which they put their names”. While Justice Myers acknowledges the difficulties the pandemic has brought students and junior lawyers, he urges them to insist on having their work thoroughly reviewed by their principals. After all, the students and juniors are the ones putting their names and reputations on the line, so it is ultimately up to them to ensure they have received adequate instructions.
Justice Myers was not done with his teachable moments theme. Where students and young lawyers don’t know what they don’t know, it is incumbent upon the principal who is charged with overseeing the student’s work to fulfil their obligations to the student: “I find it very disappointing that a principal allowed a student-at-law to swear and submit the affidavit that is before me. Closer supervision was required.”
[1] Polgampalage v Devani, 2021 ONSC 1157 (CanLII), <https://canlii.ca/t/jd78s> [Polgampalage].
Endi Batino is an articling student at ZTGH and author of this blog. If you have questions about this decision or would like more information on articling during a pandemic, you can reach Endi at 416-777-2811 ex. 5289
