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 accounts.
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.