Jun 21, 2024
Although Casey & Moss’s offices are in downtown Toronto, we represent clients throughout the province of Ontario (not to mention clients who live outside Ontario and abroad).
When a client first retains us to respond to or to start litigation, they often ask what Ontario city the litigation is going to proceed in. This is especially true if the client, the other parties, the incapable person, or the deceased’s assets are located in different cities across Ontario.
There are several considerations that go into a decision about where to start litigation in Ontario.
First, if our client has been brought into an already-ongoing court proceeding as a respondent or a defendant, we will generally agree to the jurisdiction of the litigation selected by the applicant or plaintiff. Most court appearances and hearings under an hour long continue to take place over Zoom. As a result, it is just as easy for us to appear in court in Toronto, Kingston, or Thunder Bay. We no longer have to travel to courthouses outside Toronto, unless we are appearing on long motions, application hearings, or trials. Mediations and cross-examinations can also take place remotely, especially if parties and lawyers are based in difference cities around the province. This makes it easy and cost-effective for us to represent clients involved in litigation outside Toronto.
If our client is commencing litigation, several considerations come into play when choosing where to bring the proceeding.
The Rules of Civil Procedure say that if there is no statute or rule requiring a proceeding to be commenced in a particular county, then the proceeding may be commenced at any court office in any county named in the originating process.
We often recommend that our clients start litigation in Toronto, even if they or the other parties aren’t located in Toronto, because Toronto is home to the Superior Court of Justice Estates list.
The Estates List is a specialized court in Toronto comprised of judges who hear proceedings exclusively involving issues of estate, trust and capacity law. Currently, there are four judges sitting on the Estates List. Each of these judges has extensive experience with estate litigation. The judges not only have familiarity with these types of proceedings, but court procedure on the Estates List is tailor-made for estate litigation. For example, we can book 15-minute scheduling appointments before an Estates List judge so that we can quickly and inexpensively get orders for production of documents like medical records, which is frequently one of the first steps in estate litigation. Another factor is that there is mandatory mediation for estate matters in Toronto, which can mean earlier settlement discussions and chances for resolution.
In our experience, if we bring a proceeding on the Estates List in Toronto, counsel in other cities rarely object or seek to have the proceeding transferred to a different courthouse. This is because of the expertise and efficiency of the Toronto Estates List, as well as the fact that counsel outside Toronto don’t have to travel to Toronto to attend in-person scheduling appointments, case conferences, short hearings, or mediations. All of this can be done over Zoom.
The decision about where to start litigation is something we discuss early on with our clients and is a decision we make together, based on what we think will be most efficient and cost-effective.
Cara Zacks
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Jun 7, 2024
From time to time, when meeting with a potential client, I get a question along these lines: “Are you aggressive? I need a lawyer that is going to be a barracuda.”
Do they though? Some clients think what they need is a lawyer who is going to write nasty five-page letters punctuated with threats and sarcasm, ending with “Govern yourself accordingly”. However, a nasty letter writing campaign between two blow hard lawyers doesn’t accomplish much other than to add to their clients’ legal bills.
When I first became a lawyer, I thought I would have to change my personality to earn respect as a litigator. When acquaintances learn that I am a courtroom lawyer, they often respond with something like, “But you are so nice!” Erin Cowling’s blog post about being a litigator who hated conflict really spoke to me, as I too used to wonder if I was too sensitive for legal warfare.
With time, I have come to believe that an excellent advocate acts strategically, not aggressively. Being strategic means creating a litigation map to get what your client needs. It means thinking through what your opponent is likely to argue and what a judge is likely going to need from you. It means breaking down cross-examination questions, editing them and re-ordering them until you have the right questions in the right sequence. Great advocates don’t yell the loudest. They take the raw materials of their client’s story and mold it into a compelling narrative.
Some of the best advocates I have encountered are likeable, cooperative, and kind. Good listening skills, sensitivity, and empathy can be superpowers in law. Detecting small word choices in a witness leads to better follow up questions. Sensing a judge’s reaction to your legal argument helps you make adjustments on the fly. Empathy builds trust when I am working as a mediator, and trust helps pave the way to settlement.
My advice to law students thinking of a career as a litigator? Don’t worry if no one has ever compared you to a “ferocious, opportunistic predator” (as Wikipedia describes a barracuda). Bring your unique gifts to the counsel table.
Angela Casey
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
May 23, 2024
When you retain a lawyer, you will often hear the terms “Trust Account” or “In Trust”, but what exactly does that mean? A trust account is a specialized bank account that lawyers use to hold funds received on behalf of a client or a third party in a regulated matter. As stated on the Law Society of Ontario website, the most common type of trust account is a mixed trust account which pools money for multiple clients. Any interest earned is remitted to the Law Foundation of Ontario.
As for the term “In Trust”, this specifies that the funds are meant for this account.
Why Does a Lawyer Have a Trust Account?
Lawyers have trust accounts to manage client funds responsibly and safely, as part of their fiduciary duty. These accounts ensure the protection and safekeeping of client funds.
The Security of a Trust Account
Trust accounts are strictly regulated by law societies to ensure the secure and ethical handling of client funds. In Ontario, trust accounts follow stringent rules set by the Law Society of Ontario. These regulations guarantee the security of client funds and ethical management of the account. Law firms are closely monitored to ensure compliance with these rules and regulations.
Why Would my Money be in a Trust Account?
Below are a few examples of when funds would be deposited into Trust:
- Retainers: As specified in a Retainer Agreement, when a client chooses to be represented by a lawyer, a retainer fee is often required to secure the lawyer’s services. The retainer funds are held in the firm’s trust account and used for future legal billings.
- Court-Ordered Funds/Settlement: Funds awarded by the court can be deposited into a trust account before being distributed to the client or third parties.
- Third Party Disbursements: During the course of a proceeding, various costs may arise, such as payments for court reporters, mediations, and expert opinions. Payments for these expenses can be managed through the trust account.
Lawyers are required to maintain a client trust ledger for each client with funds in the trust account, recording all transactions that come in and out of the account. Clients can ask to view this ledger at any time to see the flow of funds.
For more information you can follow this link to the Law Society of Ontario website: https://lso.ca/lawyers/practice-supports-and-resources/topics/managing-money/trust-accounts
We “trust” that you find this post a helpful tool in understanding the importance and security of trust accounts!
Emilia Szczepkowski
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
May 22, 2024
Casey & Moss is thrilled to welcome our 2024 summer students, Diana Begaliyeva and Fara Seddigh, to our team. Read on to get to know Diana and Fara!
Diana Begaliyeva
Diana is an incoming 3L at Queen’s University Faculty of Law. Prior to law school, Diana specialized in Criminology and Socio-Legal Studies at the University of Toronto. Diana discovered her passion for advocacy and access to justice while at UofT, where she founded the Legal Literacy Club. During her time as Director, Diana organized events educating the community on landlord/tenant rights, immigration, and wrongful convictions.
Prior to joining Casey & Moss, Diana strengthened her advocacy skills through her work at the Community Legal Clinic of York Region. Diana worked primarily on the disability law team and advocated for her clients at several appeals before the Social Benefits Tribunal.
While in law school, Diana researched the intersection of feminist constitutionalism and recent equality jurisprudence alongside an exceptional research team. Currently, Diana is spending her free time at the Institute of Intergovernmental Relations, where she is researching the ways in which shell companies and NFTs are used to facilitate white-collar crime and human trafficking.
When Diana is not working, she spends her time walking down Lakeshore, playing tennis, and standing in line at Badiali’s.
Diana is eager to explore her keen interest in Wills and Estates, and continue developing her oral and written advocacy skills while working at Casey & Moss this summer.
Diana can be reached at dbegaliyeva [at] caseyandmoss [dot] com.
Fara Seddigh
Fara is an incoming 3L at the Lincoln Alexander School of Law, with a Double Major in Psychology and Law & Society from York University. Prior to and throughout law school, Fara assumed several roles within the field of politics, having most recently worked as a Legislative Assistant to a Member of Parliament. While moving back and forth between Richmond Hill and Parliament Hill to stay engaged in both local and national issues, Fara solidified her passion for advocacy, community engagement, and utilizing the law and policies as tools for social change.
In her 1L and 2L years, Fara further strengthened her experiences in advocacy through volunteering with Pro Bono Students Canada at two legal clinics, where she delved into a diverse array of matters focused on Housing Law, Administrative Law, Immigration Law, and more. As the Submissions Manager of her law school’s debut law journal, the TMU Law Review, Fara worked alongside a fantastic team to advance publication of the inaugural edition and upcoming second volume.
Fara is excited to build on her advocacy skills at Casey & Moss, where she will explore her emerging interests in the area of Wills and Estates while gaining valuable mentorship and exposure to the nuances of litigation.
In her free time, aside from drinking an unusual amount of coffees per day, Fara enjoys watching and talking F1, trying to snatch up concert tickets, and looking for new places to travel!
Fara can be reached at fseddigh [at] caseyandmoss [dot] com.
May 6, 2024
In my experience, it’s quite common to have a call with a potential client that involves the following situation:
- The potential client has concerns about their relative’s last will and testament. The relative’s Will was changed shortly before the relative’s death, reducing the potential client’s share of the estate, or removing the potential client from the Will entirely.
- The relative exhibited memory issues and confusion in the years leading up to their death. The relative may have also shown signs of paranoia or behaved in previously uncharacteristic ways.
In some cases, the facts provided by the client strongly suggest that the relative was unlikely to have had the capacity to make the disputed Will. However, most situations do not fit into this category and there are often many gaps in the potential client’s knowledge. This is often because some key information and documentation is not available to review. For instance, documents such as medical records and the file of the lawyer who prepared the Will are not normally going to be available until a court Order is obtained for their release. But one cannot obtain such an Order without first starting a court application to challenge the Will.
Once the Order for production of documents is obtained and the medical, legal, financial, and other documents are reviewed, the case may look quite different than it initially appeared. It may be a better or worse case than the lawyer initially might have thought given the very limited information that was first available. For this reason, it is very important to re-assess the strength of a Will challenge case at each step of the litigation process.
On a related point, a client should not wait too long to challenge the validity of a Will. The estate trustee named will be busy administering the Estate and will eventually distribute the assets if they aren’t prevented from doing so through a court Order which ties up the administration. This type of Order is typically granted when a Will is challenged. As well, it is extremely important that a limitation period not be missed, as a limitation period could have the effect of blocking a Will challenge from proceeding. (Legal advice will be required to determine when the limitation period begins to run as the particulars of each situation must be considered.) But, generally speaking, while some things may age well, a Will challenge case is not one of them and it’s generally best to commence a claim as soon as possible.
Angelique Moss
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
