The first decade of Dianne Saxe's professional life was
devoted to energy/transportation policy and regulation, not
litigation. So this week is the thirtieth anniversary of
her first litigation victory: Public Trustee
v. Mortimer et al.
At the time, I represented the office of the Public Trustee. I
was seeking to recover $200,000 that a lawyer had stolen from an
estate, partly intended to benefit charities. The lawyer, Charles
Mortimer, had stolen most of the money 16 years earlier, while
briefly a partner at a major Toronto law firm, Thomson
Rogers. While he managed the estate in his capacity as its
executor, not in his capacity as a lawyer, the estate funds
flowed through the firm's trust account, all
correspondence was written on firm letterhead, and his
executor's bills to the estate were rendered as firm
The Thomson Rogers partners believed passionately that they
should not have to make up the funds that their
former partner had secretly stolen so many years
before. No one, including my boss, the Public Trustee,
believed this was a case I could win. On top of everything else, I
had no background in partnership law; it was my first trial; and I
was hugely pregnant, with contractions that frightened the trial
judge. I was just barely allowed to take the case to trial, with
the estimable Tom Marshall at my side in case of disaster.
To the astonishment of the Thomson Rogers partners, Justice
Southey accepted my innovative argument about the scope of
partnership law and the responsibilities of law firms for the
defalcations of their members, even when they are not
"practicing law". He ordered Thomson Rogers to make
up the stolen funds plus 16 years' interest. The
decision is still good law and has been cited 11 times,
according to CanLII. And if you ever wondered why LawPro and
the Law Society ask so many questions to ensure proper conduct
by lawyers who act as estate trustees, Public Trustee v.
Mortimer is part of the answer.
It was a great start to a satisfying and challenging litigation
career, achieving victory for my client, making a difference for
charities and helping to promote the public interest. Thanks so
much to Jan Goddard for reminding me.
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