September 16, 2020

Gavin MacKenzie is the first lawyer to be featured in legal journalist Julius Melnitzer's latest article series profiling lawyers who represent other lawyers in challenging professional circumstances:

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There’s only a handful of practitioners who devote a considerable part of their practice to representing their colleagues. Many have earned their reputation in other specialties. Their colleagues choose them as much for their professionalism and their discretion as for their expertise in specific areas of the law...

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Gavin MacKenzie of MacKenzie Barristers in Toronto represented McKercher in the SCC. He waded into disciplinary matters as senior counsel for the Law Society of Upper Canada (LSUC), now the Law Society of Ontario (LSO), from 1990 -1993. As the author of Lawyers and Ethics: Professional Responsibility and Discipline, he literally wrote the book on the issues involved.

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Wide respect for MacKenzie emerged when his peers elected him as a bencher for four consecutive terms. He eventually became the LSUC’s Treasurer.

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Some 50 percent of MacKenzie’s practice is in the professional arena. He acts primarily for lawyers but also represents clients alleging conflicts against former law firms.

August 31, 2020

Today, CBC News featured an article about an unusual case in New Brunswick; a judge who had been sitting on a first-degree murder case for 17 months was replaced, without explanation, very shortly before trial was to start. CBC explored recently unsealed documents revealing that the judge initiated an "off-the-record meeting" with a junior member of the defence team when he was attending at the courthouse to obtain transcripts related to a recusal application by the defence.

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Gavin MacKenzie was interviewed about the judicial ethics and lawyers' professionalism issues that arose in the matter:

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There is a well-established rule that lawyers shouldn't have communication with judges about pending matters without the other side being present, and that applies equally to judges, said Gavin MacKenzie, author of Lawyers and Ethics: Professional Responsibility and Discipline.

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"It would be inappropriate for a judge to attempt to influence the outcome of a pending or contemplated recusal motion," said MacKenzie. 

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He said the responsibility of the lawyer would be to end the discussion as soon as possible.

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You can read the full CBC News article below.

June 24, 2020

Today, the Federal Court of Appeal granted leave to intervene to six interveners in the appeal of Bell Media Inc. v. GoldTV.Biz, 2019 FC 1432, in which the Federal Court granted Canada's first website-blocking order. MacKenzie Barristers acted for FIAPF, one of the interveners to whom leave was granted (FIAPF stands for Fédération Internationale des Associations de Producteurs de Films, or the International Federation of Film Producers Associations). 

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The leave motion was heard in writing, further to case management directions issued while the courts were closed due to the COVID-19 pandemic. In an interesting decision, Justice Stratas imposed terms on all interventions by requiring interveners with similar interests to collaborate on joint written submissions to the Court.

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FIAPF has a valuable perspective and worldwide experience with site-blocking orders, and MacKenzie Barristers looks forward to assisting the Federal Court of Appeal with FIAPF's contributions in this important case.

June 10, 2020

This week, Brooke was interviewed on the “Exhibit Eh-OK” podcast hosted by Oatley Vigmond personal injury lawyers Harrison Cooper and Lara Fitzgerald-Husek. The podcast is marketed as "positive, entertaining conversations with interesting guests", and includes discussions about efforts to stay fit while in quarantine, lawyers who used to be rock stars, and Brooke's brief reign as a Jeopardy! champion.

May 26, 2020

In a decision released today, the Law Society Tribunal took the rare step of awarding costs against the Law Society of Ontario on the basis that allegations of professional misconduct against a lawyer were unwarranted and brought without reasonable justification.

MacKenzie Barristers acted for the licensee on the motion for costs, as well as in the discipline hearing, in which the Law Society had alleged the lawyer breached the Rules of Professional Conduct relating to advertising. The Tribunal had concluded that "except for one minor mistake in a 2016 mailer, none of the allegations was established". The application was converted to an invitation to attend and dismissed.

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On the motion for costs, the Tribunal acknowledged that "The standard for awarding costs against the Law Society is extremely high", but held that the lawyer met that high standard. The panel exercised its discretion to award to the licensee his costs for defending himself against the unwarranted allegations.

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Update: The Law Times published a story on this important decision here.

May 12, 2020

The latest volume of the Queen's Law Journal includes a peer-reviewed article by Brooke MacKenzie, sharing her research on motions for the disqualification of counsel in Canada. With the assistance of the OBA Foundation's Chief Justice of Ontario Fellowship in Legal Ethics and Professionalism, Brooke conducted a comprehensive empirical study of 1,283 disqualification motions decided in Canada since the Supreme Court of Canada's seminal 1990 decision in MacDonald Estate v Martin.

Brooke's study explores the factors that influence the courts' decision-making in disqualification motions and provides some much-needed clarity in this area. Her article concludes by offering practical guidance for law firms and lawyers to guard against possible disqualification motions.

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You can read a full-text copy of the article, "Explaining Disqualification: An Empirical Review of Motions for the Removal of Counsel", (2020) 45:2 Queen's LJ 199, at the link below.

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March 16, 2020

Until further notice, the MacKenzie Barristers team will be serving our clients remotely; our physical office at 120 Adelaide is currently closed as a "social distancing" measure in light of the coronavirus.

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You can still reach us by email or by phone (please leave a voicemail and we will return your call promptly). 

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We are proud to have maintained a secure cloud-based system and largely paperless workflow since founding our firm in 2016. Our entire team is set up to work from home and to collaborate as if we were in the office, and we are confident we can continue serving our clients' needs in these extraordinary circumstances.

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Best wishes to our clients and colleagues during this unpredictable time. 

March 04, 2020

Today's Law Times featured an article about Justice Myers' decision in Cengic v Castro, 2020 ONSC 986, in which he ordered that a lawyer must stay on the record for his client's impending six-week personal injury trial despite the lawyer's allegation that there was "a breakdown in their relationship".

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The law firm, which was acting on contingency, had recommended a settlement that was insufficient from the client's view, then sought to be removed from the record because the client wished to proceed to trial, rejecting his lawyer's advice. Justice Myers held that the lawyer's removal would delay the resolution of the case on its merits and prejudice the client, and noted that the client "does not understand why his lawyer wants to desert him as he did nothing wrong. He just wants to finally have his case resolved by acceptable settlement or trial".

The Law Times interviewed Gavin MacKenzie about the case:

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Gavin MacKenzie, the author of Lawyers and Ethics: Professional Responsibility and Discipline, says Myers offered a good decision. Plaintiffs' lawyers should not take on cases on a contingency basis expecting they will be able to withdraw if it’s not settled before trial, says MacKenzie, who was not involved in the case.

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“I think the critical fact here was that the trial was imminent, and that it had been adjourned previously,” says MacKenzie. “You can only contemplate withdrawal if the trial is sufficiently far in the future that the client won't be prejudiced if the client’s required to change counsel. . . . Clients can terminate a lawyer’s retainer for no cause at all. But lawyers don't have that luxury.”

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February 13, 2020

Tonight's episode of the game show Jeopardy! featured a familiar contestant. Brooke not only had the privilege of meeting Alex Trebek and competing on the show, but she became a Jeopardy champion after winning a competitive game.

In addition to correctly answering (in the form of a question) clues in categories such as The Civil War, The Horn of Africa, 3/4 of an EGOT, and Se"v"en-Letter Words, Brooke was able to break into the lead with a correct answer in Final Jeopardy about International Literature--and with some good luck hitting a big Daily Double in a category called "Trial Mix", which featured clues about important trials in American history.

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You can read more about Brooke's time as a Jeopardy! champion in her interview with U of T News, linked below.

September 05, 2019

In the wake of media attention on former Supreme Court of Canada justices' roles in the recent SNC-Lavalin affair, the Lawyer's Daily interviewed Gavin MacKenzie, among other experts on legal ethics and professionalism issues, about the thorny issues arising from judges' return to legal practice.

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Gavin's perspective on the issues was quoted extensively in the article. He noted that none of the judges involved in the SNC-Lavalin affair transgressed any professional conduct rules, but spoke to the challenges of devising an approach to address similar circumstances, including as follows:

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“There is a legitimate concern that clients — including governments — may suggest a legal opinion of a former judge is entitled to greater weight because of the author’s status,” said Gavin MacKenzie of Toronto’s MacKenzie Barristers, an expert on professional ethics and lawyer regulation. “The difficulty is in defining what should be prohibited to address this concern.”

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MacKenzie noted that if former judges are prohibited from practising law, as they are in England and Wales, “you prevent the potential mischief of clients inappropriately exploiting the prestige of their lawyer’s former office, but you also prevent members of the public and practising lawyers from benefiting from the valuable experience and judgment of former judges.”

In MacKenzie’s view, all ex-judges, including Supreme Court judges, “may be well advised to avoid acting on matters that may subject them to criticism, but I think the concern about harming the reputation of their former court is overstated. Reasonable members of the public understand that sitting judges must be non-partisan, whereas practising lawyers have a duty to advance the interests of their clients.”

August 21, 2019

Gavin was once again recognized in the latest edition of Best Lawyers™ in Canada as a leading lawyer in the areas of Appellate Practice, Corporate and Commercial Litigation, Administrative and Public Law, and Legal Malpractice Law, among others. This is the ninth consecutive year he has received this honour. Best Lawyers in Canada rankings are based entirely on peer review, recognizing the consensus opinion of leading lawyers about the professional abilities of their colleagues in the bar.

August 09, 2019

Amid some public concern about a law firm's alleged conflict of interest in advising the City of Ottawa, the Ottawa Citizen spoke to Brooke about the governing principles for lawyers' conflicts of interests. She explained some of the duties owed by lawyers to current clients and to former clients, conflict checking procedures and conflict screens, and the need to consider the particulars of a given situation to assess whether matters are related or unrelated, and concluded: 

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...in answering whether there is any potential conflict of interest in a legal sense, there are gaps in information about the relationship between the law firm, the city and SNC-Lavalin, said Brooke MacKenzie, a Toronto lawyer and adjunct professor of legal ethics at Osgoode Hall Law School.

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“On the surface, it’s understandable that the public has questions. But, before drawing any conclusions, we need to get more information,” she said. “Lawyers are generally careful to avoid conflicts of interest.”

May 14, 2019

Today's Law Times discusses a ruling of the Court of Appeal for Ontario dismissing a self-represented litigant's request to obtain and disseminate audio recordings of her proceeding on her own terms.

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The litigant challenged the general rule under s. 136(2) of the Courts of Justice Act that no person may record court hearings nor publish or disseminate recordings of court proceedings without judicial authorization (which is granted only in certain exceptional circumstances), arguing that the open courts principle requires that audio and video recording and streaming be permitted. The Court rejected her request, finding that the litigant's request was, in effect, to create a default authorization for video recording, which would be contrary to the Act. The Court concluded that this private dispute was not an appropriate case for the exercise of its discretion to permit recording.

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In the Law Times, Brooke explained that while the Court of Appeal's decision was correct in law, "loosening the restrictions on recordings in court and their dissemination would improve public understanding of the administration of justice". She added, "I think any reform needs to happen at an institutional level through amendments to the Courts of Justice Act and changes to the court’s practice directions, rather than through discretionary decisions seeking exemptions from the general rule".

March 12, 2019

We are looking for an excellent legal assistant to join our team. See the job description linked below for more information.

February 19, 2019

Last week, both Gavin MacKenzie and Brooke MacKenzie were featured in the legal press. Gavin was interviewed by Canadian Lawyer and the Lawyers' Daily in the context of the SNC-Lavalin affair, and discussed how solicitor-client privilege may--or may not--apply to communications between the federal government and the Attorney General of Canada, depending on the circumstances:

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Wilson-Raybould was the chief law officer of the Crown, the government’s lawyer and if the government is seeking legal advice, like a lawyer helping a client with an expectation of confidentiality, those conversations are between them. But the AG has more than one role and in her role in deciding whether to prosecute offenders, the government is not her client and communications with officials about that are not subject to solicitor-client privilege, says Gavin MacKenzie of MacKenzie Barristers and author of Lawyers and Ethics: Professional Responsibility and Discipline.

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“In some situations, clients and lawyers communicate with each other for multiple purposes, so the exercise of determining whether specific communications are privileged may require a meticulous review of the communications. Ms. Wilson-Raybould was wise to seek the advice of esteemed counsel to assist in this process,” MacKenzie told Legal Feeds.

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Brooke was interviewed on a different issue--she spoke to the Law Times about whether the Law Society ought to amend the Rules of Professional Conduct to impose a duty on lawyers to be competent with technology. She explained her support for the Federation of Law Societies' model commentary on technological competence, while noting that existing Rules (e.g. requiring protection of clients' confidential information) should be interpreted through the lens of modern technology.

January 07, 2019

On December 10, 2018, the Law Society of Ontario approved a motion appointing Gavin MacKenzie to preside over the 2019 bencher election and exercise the powers and perform the duties of the Treasurer in the election. Today, the Law Times featured a short article reporting on this development.

December 07, 2018

Gavin MacKenzie was quoted in the Lawyers' Daily today in an article entitled, "Ex-SCC judge who co-wrote Dunsmuir weighs in as counsel as top court revisits Dunsmuir's standard of review". The article discusses how the Rules of Professional Conduct applicable to advocacy by former judges are in flux, and there are diverging views about whether a prohibition on retired judges "appearing" in court applies equally to delivering written submissions. 

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Gavin MacKenzie of Toronto’s MacKenzie Barristers, an expert on professional conduct, said it would be “desirable that the Federation [of Law Societies] amend its Model Code, and that law societies amend their Rules of Professional Conduct, to remove any possible ambiguity in the present rule, and to address the question whether by presenting written submissions to the court a retired judge is ‘appearing as counsel or advocate’ in court.”

MacKenzie explained that the concern is not that a court will be improperly influenced by submissions from a former justice.” It won’t be; it will decide the case based on the arguments of all counsel,” he remarked.

But, he added, “I can appreciate the argument that the policy underlying the rule — the appearance, to lay parties adverse to the retired judge’s client, of possible improper influence — would apply equally to written and oral submissions.”

November 30, 2018

In a special edition of Lexpert Magazine in the Globe and Mail Report on Business, Gavin was ranked as one of Canada's leading litigation lawyers. Lexpert-ranked lawyers are selected in an annual survey by their peers. 

September 20, 2018

MacKenzie Barristers is delighted with the Ontario Court of Appeal’s decision today in Ghiassi v Singh awarding damages to a plaintiff who was seriously injured shortly after birth due to delayed diagnosis and treatment of kernicterus.

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The Court’s decision confirms three important causation principles:

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(1) even without specific evidence proving an injury would not have occurred but for the defendants’ negligence, trial judges may draw an inference of causation if there is a factual foundation to do so—particularly if the defendant has not called evidence to the contrary;

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(2) defendants cannot escape liability by “pointing the finger” at the hypothetical negligence of a third party who might have caused the loss in any event; and

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(3) defendants cannot rely on a gap in evidence if the gap is a result of their own negligence (e.g., if there is no data about the patient’s condition because a test was not done).

We were pleased to work on this appeal alongside the plaintiffs’ trial counsel, Barbara Legate and her team at Legate & Associates LLP, whose diligent and effective trial advocacy set the stage for a successful result on appeal.

We are hopeful the Court’s decision in Ghiassi will assist plaintiffs and their trial counsel in future medical malpractice cases.

August 20, 2018

On Friday, Justice Wilton-Siegel of the Ontario Superior Court (Commercial List) set aside an arbitration award of more than $12 million against Alectra Utilities Corporation on the basis that the arbitrator did not have jurisdiction to make the order. Gavin MacKenzie and Brooke MacKenzie of MacKenzie Barristers were pleased to represent Alectra on the application to set aside the arbitration award. 

Alectra argued on the application that the arbitrator lacked jurisdiction to make the award in question because the agreement between the parties provided that no party shall be liable for damages for loss of profit or loss of opportunity, but the damages awarded by the arbitrator were for anticipated lost profits from a joint venture project from which Alectra had withdrawn. Justice Wilton-Siegel accepted this submission, and set aside the arbitrator's award under s. 46(1)(3) of the Arbitration Act, 1991, which provides--notwithstanding an agreement between the parties that an award will not be subject to appeal--that the Court may set aside an award if it "deals with a dispute that the arbitration agreement does not cover or contains a decision on a matter that is beyond the scope of the agreement", as such an award would exceed the arbitrator's jurisdiction.

This decision provides an important reminder that an arbitrator's jurisdiction is confined by the terms of the agreement whereby the parties agree to submit disputes to arbitration. Arbitrators have only the jurisdiction the parties grant to them, and an order that falls outside the scope of an arbitrator's jurisdiction may be set aside by the Court. This is so even if the parties agree that any arbitration award will be final and not subject to appeal; awards may still be reviewed and overturned on the limited basis that they exceeded an arbitrator's jurisdiction.

August 13, 2018

The Law Times interviewed Brooke MacKenzie for an article published today about the debate within Ontario's legal community about the need for a new law school at Ryerson University. Entitled "What will Ontario do with more lawyers?", the article speaks to concerns about law school graduate debt loads and a challenging job market for young lawyers.

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While recognizing these concerns, Brooke noted that a new law school with a focus on practical training may assist in addressing the vast unmet legal needs of middle-income Canadians:

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“I think the criticism that is often floated . . . is that we have too many lawyers already. I have trouble with that when we also frequently hear that we have an access-to-justice crisis,” MacKenzie says. “There is a disconnect between the kinds of jobs that are available to new grads and the needs in the market.”

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MacKenzie says that while articling positions help train students to become associates at a firm, they don’t necessarily fill the gap on needed legal services dealing with family or criminal law matters.

July 03, 2018

Brooke was interviewed by Canadian Lawyer magazine today about the challenges Ontario's new Attorney General, Caroline Mulroney, is likely to face, as well as her opportunities to build on recent momentum to modernize our courts through investments in technology.

She suggests that Mulroney should advance the investments to court technology started by former Attorney General Yasir Naqvi, which, while an upfront expense, will pay for themselves in the medium to long term in both cost savings and access to justice improvements.

May 11, 2018

The Supreme Court of Canada released its reasons in Rankin v JJ, 2018 SCC 19, in which Gavin and Brooke MacKenzie acted for the intervener, the Ontario Trial Lawyers' Association.

The case arose from tragic circumstances. The plaintiff and his friend, aged 15 and 16, stole a car from the unsecured lot of the defendant commercial garage. The garage owner had left the car unlocked with the keys visible in the ashtray. The plaintiff's friend crashed the car, and the plaintiff suffered catastrophic brain injuries. The trial judge had held that the garage owed a duty of care to the plaintiff and was jointly liable for his injuries. The Court of Appeal upheld this decision.

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The Supreme Court allowed the appeal brought by the defendant garage owner, in a split 7-2 decision. The majority and the dissenting justices agreed that the case should be decided on a traditional tort law principles, and that the theft was reasonably foreseeable. They disagreed, however, on whether there was sufficient evidence to support the conclusion that serious personal injury resulting from the theft was foreseeable. The majority held that it was not, and concluded that the garage did not owe a duty of care in the circumstances.

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The majority accepted Gavin and Brooke's submission, on behalf of OTLA, that criminal misconduct is not relevant to a duty of care; a defendant's "bad behaviour" does not sever any proximate relationship nor operate as a policy basis to negate an established duty. In obiter, it declined to accept the submission that businesses that introduce a danger into their communities have a positive duty to guard against the risk that individuals may be injured as a result of those dangers.

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Justice Brown, writing in dissent, concluded that there was sufficient evidence to support the trial judge's conclusion that physical injury to the plaintiff was a foreseeable consequence of the garage's negligence in leaving the car unsecured, unlocked, and with the keys visible, thus establishing a duty of care. Justice Brown highlighted that the case was argued on the basis of duty of care--not remoteness--meaning that the finding on duty of care was dispositive of the garage owner's negligence.

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In any event, the majority concluded that it does not follow from its holding in this particular case that on a different record a plaintiff could not succeed in establishing liability when an automobile is stolen from a commercial establishment and involved in an accident.

May 01, 2018

The Court of Appeal for Ontario has released its reasons in Butler v. Royal Victoria Hospital, 2018 ONCA 409, in which Gavin and Brooke represented the Respondents, a young girl who was severely and permanently injured at birth as a result of hospital nurses' negligence, as well as her family. 

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After a five-and-a-half week trial, the judge held that the birth injury was the sole cause of the plaintiff's impairments, and awarded her $5,568,393 in damages (which included $1,881,846 in future lost income), as well as legal fees in the amount of $1,503,466. The Court of Appeal dismissed the hospital's appeal of the future income loss and costs awards.

The Court of Appeal's decision affirms that (1) although trial judges are entitled to adjust an award for future loss of income upwards or downwards to account for general contingencies, they are not required to do so, and it is not an error of law if they decline to do so; and (2) a costs award need not be measured with exactitude, but should reflect a fair and reasonable amount that should be paid by the unsuccessful party in the circumstances.

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MacKenzie Barristers is pleased to have assisted the Butler family in upholding the successful  result they achieved with trial counsel at Sommers, Roth & Elmaleh, and in ultimately obtaining compensation for their losses.

March 07, 2018

On February 28, 2018, Brooke spoke alongside Mr. Justice Paul Perell, Moya Graham of McCarthy Tétrault LLP, and Stephen Ross of Rogers Partners LLP about the "on the ground" implications of the Supreme Court of Canada's decision in Hryniak v Mauldin, 2014 SCC 7, which called for a "culture shift to create an environment promoting timely and affordable access to the civil justice system... and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case".

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The panel examined counsel and judges' experiences with summary judgment in the post-Hyrniak landscape, as well as recent decisions of the Court of Appeal for Ontario reversing partial summary judgments granted by the Superior Court. Brooke spoke to her graduate thesis demonstrating that the number of summary judgment motions rendered and granted have increased since the 2010 rule changes, and particularly after Hyrniak, as well as her subsequent research exploring the concern that "interpretive erosion" by the Court of Appeal may undermine the culture shift the Supreme Court sought to encourage.

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The Lawyers' Daily wrote an article on the TLA panel discussion, which is available below.

February 09, 2018

Brooke’s paper, “Developments in the Legal Profession: Lizotte, Alberta, and Green and the Growing Power of Privilege and Professional Regulators” has been published in the Supreme Court Law Review. In her article, Brooke discusses the context and implications of three important decisions of the Supreme Court of Canada from its 2016-2017 term. Here is the abstract:

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The Supreme Court of Canada released three decisions in its 2016-2017 term that touch directly upon the "law of lawyers", i.e. privilege issues and legal professional regulation. The Court has shown great interest in privilege lately; its decisions in  Lizotte v. Aviva Insurance Company of Canada and Alberta (Information and Privacy Commissioner) v. University of Calgary reaffirm the significant protection our courts accord to both solicitor-client and litigation privilege, such that a legislative provision will not abrogate the privilege unless it is "clear, explicit and unequivocal" in its intention to do so. In Green v. Law Society of Manitoba, the Court confirmed that, in light of its statutory mandate to protect the public interest in the provision of legal services, a law society has authority to mandate licensees to complete continuing professional development activities, and to enforce this requirement by suspending lawyers who fail to comply. While all three decisions clarify the law, they also raise interesting questions about where the law of privilege is headed, and how professional regulators may respond to this affirmation of their authority.

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You can read the full article at the link below.

January 19, 2018

MacKenzie Barristers was pleased to collaborate with passenger rights advocate and self-represented Respondent Dr. Gabor Lukács in his successful appearance before the Supreme Court of Canada in Delta Air Lines v Lukács, 2018 SCC 2, in which the Court held that it was unreasonable for an administrative tribunal to refuse to hear a complaint on the basis of the test for public interest standing developed by and for the civil courts. The majority of the Supreme Court held that when administrative bodies (in this case, the Canadian Transportation Agency) have discretion to determine whether to hear certain complaints, they must exercise this discretion reasonably, and the CTA had failed to do so by relying on a test that could never be satisfied in the context.

The Court concluded that it is ultimately up to individual administrative bodies to determine how best to apply their discretion consistent with the objective of the enabling statutory scheme, but also highlighted important overarching principles about public-interest standing, including by stating, “The whole point is for the court to use its discretion, where appropriate, to allow more plaintiffs through the door”, and explaining:

To refuse a complaint based solely on the identity of the group bringing it prevents the Agency from hearing potentially highly relevant complaints, and hinders its ability to fulfill the statutory scheme’s objective. This does not mean that every complaint from a public interest group must be heard. It is unreasonable, however, for the Agency to apply a test that would prevent it from hearing the complaint of any such group.

We truly enjoyed collaborating and sharing ideas with Dr. Lukács on this appeal. We worked with Dr. Lukács pro bono on a limited scope retainer, assisting with the preparation of his written and oral submissions before the Supreme Court of Canada in this important case. We were each able to bring different perspectives to the appeal, and crafted arguments and discussed case strategies as a team. It was a fun and engaging client experience that we hope to replicate in future appeals—and Dr. Lukács should be commended for his remarkable knowledge of the law and passionate advocacy in this matter.

The Court’s decision, and the fact that it was reached in large part through advocacy by a self-represented respondent, is an important development for public participation in the administration of justice.

January 04, 2018

On December 20, 2017, the Ontario Court of Appeal heard and granted our client's appeal in Sataur v Starbucks Coffee Canada Inc. The decision clears up some confusion in the lower courts by confirming that it is not improper to name employees as defendants as well as their employers, so long as the employees are alleged to have been personally negligent.

Ms. Sataur claims that a Starbucks employee negligently spilled scalding hot water on her hands, causing severe burns. She named Starbucks, the barista who spilled the hot water, and her direct supervisor as defendants. 

The motions judge struck the claim against the employees, holding there was no cause of action against them because they were acting in the scope of their employment and Starbucks could be held vicariously liable for their conduct.

The Court of Appeal reversed this decision, confirming that employees can be held personally liable for their own negligence while acting within the scope of their employment, and added:

"It is not an abuse of process to bring a lawsuit against individual defendants for the purpose of obtaining discovery from them, if the plaintiff has pleaded a proper cause of action against those individual defendants".

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Today, the Lawyer's Daily published an article about the Sataur case, quoting Gavin on the impact of the Court of Appeal's decision.

October 24, 2017

Brooke's paper "Effecting a Culture Shift--An Empirical Review of Ontario's Summary Judgment Reforms" was published in Volume 54, Issue 4 of the Osgoode Hall Law Journal following an extensive peer-review process. The published article is a revised version of Brooke's LL.M. thesis completed at the University of Toronto in 2016. Here is the abstract:

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Lawyers and policymakers in Canada frequently discuss the need for reforms to increase access to civil justice, but concrete efforts to improve the efficiency and cost-effectiveness of our justice system are few and far between. Unfortunately, even when reforms are implemented, measures are rarely put in place to assess whether the reforms were effective. Ontario’s Civil Justice Reform Project inspired a package of amendments to Rules of Civil Procedure in 2010 but, aside from anecdotal reports, little is known about whether they achieved their desired effects. This paper presents an empirical analysis of all reported summary judgment decisions in Ontario between 2004 and 2015, in order to explore whether amendments to the summary judgment rules actually improved the efficiency and affordability of the civil justice system as was intended.

By reviewing trends in the number and outcomes of summary judgment motions throughout the study period, we can conclude that the amendments to Ontario’s summary judgment rules have made strides towards their intended goal. Since the reforms, we observe an increase in the number of summary judgment motions determined, an increase in the number of summary judgment motions granted, and, broadly, an increase in the proportion of successful summary judgment motions. The data analyzed in this study suggest that the “culture shift” promoted by the Supreme Court of Canada following the implementation of the new rule is in fact underway.

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Brooke presented her research on summary judgment at the Ontario Bar Association's "Nuts and Bolts of Summary Judgment" conference last year, and will be presenting it as part of the Toronto Lawyers' Association Summary Judgment Panel in February 2018.

October 23, 2017

Our next "Conduct Becoming" column, reproduced below, is a dialogue on the Law Society of Upper Canada's now-controversial "Statement of Principles" requirement. It will be published in the next print edition of the CBA National Magazine later this fall.

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Ontario’s Statement of Principles: Overreach or Overdue?

Gavin MacKenzie & Brooke MacKenzie

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Ontario’s Law Society has sparked a vigorous debate over its decision to require lawyers, including retired and non-practising members, to adopt a Statement of Principles. Lawyers must declare that they have an “obligation to promote equality, diversity, and inclusion generally, and in their behaviour towards colleagues, employees, clients, and the public”.  Our columnists weigh in.

Gavin: The Law Society’s express purpose is to “accelerate a culture shift” and to educate lawyers about their obligations to bring about “cultural and attitudinal change”.  But aren’t principles personal? Don’t lawyers have the right to think and speak for themselves?

Brooke: Absolutely—but I’ve found the opposition to the Statement of Principles to be hyperbolic, and to misconceive both the problem and the proposed remedy. Queen’s Professor Bruce Pardy wrote in an op-ed in the National Post that upon learning about it he felt the need to check his passport to make sure he wasn’t in North Korea. “Godwin’s Law” states that once someone invokes an analogy to Nazi Germany, they lose the argument. I think that should apply equally to comparisons to North Korea and Orwell’s 1984. I also have concerns, but we need to do what we’re trained to do as lawyers: consider the intent of the policy, examine the facts, and then get into a fight about it.

Gavin: Well, I admit that I am being provocative, but I have to wonder what the Law Society is accomplishing with this approach. It seems to me to be doomed to be ineffective. The mechanism the Law Society has adopted has provoked a debate that distracts from the goal of advancing equality in the profession. The Rules of Professional Conduct already require us to recognize the diversity of the Ontario community and to respect human rights laws. If you discriminate in hiring or promotion based on race (or gender, or sexual orientation, or religion) you can be disciplined. That is as it should be.

Brooke: True, but disciplining individual lawyers for discrimination is an inadequate remedy for a pervasive problem. The Law Society commissioned an independent study that found systemic racism in the legal profession. The problem isn’t that law firms are making personnel decisions explicitly based on race, but unconscious bias in decision-making and systemic obstacles to advancement.

Gavin: Okay, but mandating a “Statement of Principles” seems to many lawyers to be Orwellian in that it compels thought and speech. The Law Society can prescribe conduct, but can it prescribe beliefs?

Brooke: No, but “Statement of Principles” is a misnomer. It’s not compelling thought and speech or prescribing beliefs. All we are required to do is affirm our existing obligation to recognize the diversity of the Ontario community. While I’ve heard some lawyers take issue with accepting an obligation to “promote” (as distinct from the current obligation to “recognize”) diversity, this is splitting hairs—and it nonetheless refers to our conduct rather than our beliefs. The Law Society should have made this clearer, but this is conduct regulation, not thought regulation.

Gavin: It seems the Statement of Principles is really a Statement of Platitudes.

Brooke: That would have been a much better name!

Gavin: Mandating a “Statement of Principles” undermines the meritorious cause the Law Society is trying to advance. It’s not going to change anyone’s views. The Law Society’s objective is to persuade lawyers to bring about cultural change. You don’t persuade people by compelling them to say they agree with you. That just results in no one listening to what you have to say.

Brooke: Agreed. If the goal was for lawyers to think critically about the values at issue, providing a template for us to sign and file away was not the solution. We need to candidly discuss what our professional obligations in respect of equality, diversity, and inclusion ought to be, and what active steps we should take to ensure our profession represents the public we serve.

Ironically, I think opposition to the “Orwellian” Statement of Principles has brought us closer to achieving this objective by sparking this debate.

Gavin: Ah, now I get it—the Law Society has achieved its goals by being not only Orwellian but Machiavellian too!

Gavin MacKenzie & Brooke MacKenzie practise together in Toronto as MacKenzie Barristers PC, with a focus on civil appeals and professional responsibility issues.

October 05, 2017

MacKenzie Barristers made our second appearance together at the Supreme Court of Canada today, making submissions to the Court on behalf of the Ontario Trial Lawyers Association (OTLA). The Court granted OTLA leave to intervene in the appeal of Rankin v JJ, a case raising fascinating issues about the duty of care in negligence law. The decision is currently under reserve.

October 02, 2017

Today's Law Times includes a feature about an important case we're working on at MacKenzie Barristers: an application for leave to appeal the Ontario Court of Appeal's decision in Ivic v. Lakovic to the Supreme Court of Canada. The case raises important questions about vicarious liability in tort law and civil liability for sexual assault. The plaintiff alleged that she was sexually assaulted by the driver of a taxi she had called to take her home safely from a party at which she had been drinking, but the case against the taxi company was dismissed on summary judgment.

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“'This case gives the court the opportunity to provide effective guidance to lower courts, Canadian businesses, and the public as to whether employers will be held responsible for their employees’ torts against their customers, and to decide whether vicarious liability is indeed one means through which our justice system can seek accountability and a meaningful remedy to survivors of sexual assault,' MacKenzie writes."

September 22, 2017

Gavin MacKenzie was quoted in Canadian Lawyer today, commenting on a recent case in which an Alberta judge ordered costs personally against a lawyer, and referred her conduct to the Law Society, after finding that she had pursued vexatious litigation.

Gavin MacKenzie, of MacKenzie Barristers, says that, historically, courts have been extremely cautious in awarding costs personally against lawyers because of their duties to bring forward even unpopular cases.

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He says the decision to award costs against Kennedy reflects an approach that treats this tradition of caution as no longer justified because of the culture shift mandated by the Supreme Court of Canada in Hryniak v. Mauldin.

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“The court nevertheless recognizes that costs must not be awarded against lawyers personally merely because they assert claims or defences that are weak or unmeritorious,” says MacKenzie, who was not involved in the Sawridge matter.

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“A ‘serious abuse of the judicial system’ is required. Persistently relitigating a claim that has been finally determined adversely in previous litigation is a strong indicator of abuse of the court’s process.”

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MacKenzie says that the lesson lawyers can take from this case is that “zealous advocacy” should not be their only or primary guide.

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“We have to avoid being zealots,” says MacKenzie.

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“Our Rules of Professional Conduct require lawyers to represent their clients ‘resolutely’ and honourably within the limits of the law while observing their duties as officers of the court. Allowing this balance to become out of sync can lead to unfortunate consequences, as the Stoney case illustrates.”

September 01, 2017

Brooke was recently honoured by the OBA Foundation, who awarded her its Chief Justice of Ontario Fellowship in Legal Ethics and Professionalism Studies for her research and writing on conflicts of interest and motions for disqualification of counsel. Brooke's writing on these issues has been accepted for publication in the Annual Review of Civil LItigation, and she is looking forward to presenting her work at upcoming legal conferences.

August 21, 2017

Gavin MacKenzie was interviewed by the Globe and Mail and quoted in its article discussing the Ontario Judicial Council hearing respecting the conduct of Ontario Court Justice Bernd Zabel of Hamilton, who wore a "Make America Great Again" hat into his courtroom the day after Donald Trump was elected president last November.

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"I'm not aware of any other case where a judge has reached a hearing over wearing something or even saying something that would reflect political partisanship," Toronto lawyer Gavin MacKenzie, whose practice includes professional responsibility and discipline, said in an interview.

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Gavin was also interviewed on the issue by Danielle Smith live on August 23 on Calgary radio station News Talk 770.

June 28, 2017

Today the Supreme Court of Canada released its decision in Google v Equustek, 2017 SCC 34, in which it upheld a worldwide injunction requiring Google to delist websites that unlawfully sold the respondent’s intellectual property, in breach of numerous court orders.

MacKenzie Barristers appeared on behalf of an intervener, the International Federation of Film Producers’ Associations. We are pleased that the Supreme Court accepted our client’s position, including by citing a number of the authorities we referred to in our factum and our oral submissions.

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We've prepared a short summary of the decision, which we expect is likely of interest to lawyers and to companies operating internationally.

June 27, 2017

Today the Court of Appeal for Ontario released its reasons in Nagribianko v Select Wine Merchants Ltd, 2017 ONCA 540, in which Gavin and Brooke MacKenzie represented the Respondent employer. The Court dismissed an employee's appeal regarding the damages to which he was entitled following the employer's decision to terminate his employment during a six-month probationary period. 

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The Court of Appeal accepted the employer's position that the employee's agreed-upon probationary status enabled the employer to terminate his employment without notice over and above the statutory minimum if the employer determined, in good faith, that the employee was unsuitable for permanent employment, after having provided the employee with a fair and reasonable opportunity to demonstrate his suitability.

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This is the first Ontario Court of Appeal decision to consider the legal implications of an employee's probationary status, and confirms that Ontario law is consistent with appellate authority in B.C. Moreover, the decision should provide some certainty to employers and employees about their rights and obligations respecting probationary employment.

June 26, 2017

The latest of MacKenzie Barristers' quarterly "Conduct Becoming" columns on professional responsibility issues was published in the CBA National Magazine this week. 

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In "First come, first served: Revisiting the cab rank rule", Gavin and Brooke discuss the "cab rank" rule requiring English barristers to accept client retainers irrespective of the identity of the client or any belief the barrister may have formed about the client's character, cause, or conduct; the differences in Canadian rules of professional conduct; and how costs awards against lawyers personally can be reconciled with these rules.

June 26, 2017

The Law Times interviewed and quoted Gavin MacKenzie in an article in this week's issue, "Lawyers could have duty of care to non-clients". Gavin discusses Chegancas v. Godo, a recent decision of the Ontario Superior Court dismissing a summary judgment motion brought by a real estate lawyer asking the court to throw out a claim initiated by a non-client lender who alleged to have relied on independent legal advice the real estate lawyer provided to the borrower in the same transaction. The article states:

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Gavin MacKenzie, of MacKenzie Barristers, says that cases brought by parties against a lawyer retained by the other side are always problematic, as generally a lawyer has a duty to his client. 

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In this case, however, the expert evidence pointed to the fact that it was reasonable to expect that the lender would rely on the fact that the borrower receives independent legal advice, he says. 

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“It already brings home to lawyers the risk if you provide independent legal advice to a borrower, that you may well be liable to the lender who relies on your certificate of independent legal advice,” says MacKenzie, who was not involved in the case.

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“But I do think it’s confined to that situation. I don’t think it opens up liability on the part of lawyers generally to non-clients.”

May 05, 2017

The Lawyers' Daily has published an article on Brooke's graduate research on summary judgment reform in Ontario. Her article presenting the study and its conclusions has been accepted by the Osgoode Hall Law Journal for publication this June. Please feel free to contact Brooke to discuss, or if you would like a copy of the full study.

April 24, 2017

The latest issue of the Law Times features Brooke's editorial on the courts' failure to move into the digital age, and three changes the courts can make right now to harness technology to save lawyers' time and clients' money.

April 05, 2017

Gavin was featured in the latest episode of "Lawyered", a bi-weekly podcast that takes a critical look at current Canadian legal issues. He discussed the decisions of three courts of appeal on the accreditation of a law school at Trinity Western University; the Supreme Court of Canada's latest comments and disagreements on standards of review; and how tribunal decisions can set precedents for administrative actors. You can listen to Lawyered at the link below.

March 21, 2017

Gavin and Brooke MacKenzie's latest "Conduct Becoming" column is now available in the CBA's National Magazine. Their column discusses the difference between the public narrative surrounding a high-profile case and what truly happens in the courtroom, and how this can affect the public perception of lawyers.

February 06, 2017

Gavin MacKenzie and Brooke MacKenzie were both quoted in the February 6, 2017 issue of the Law Times, providing commentary on the Ontario Court of Appeal’s decision in Ontario v. Chartis Insurance Company of Canada. In Chartis, the Court disqualified a law firm from representing its long-term client in a dispute with the provincial government because one of the firm’s lawyers previously worked on the other side of the action – despite the fact that the firm set up an ethical screen in compliance with Law Society guidelines in a timely manner. The article states:

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Gavin and Brooke MacKenzie, a father-daughter duo that represented the appellants, say the decision injects uncertainty into the practice of law firms, as firms cannot be assured that erecting an ethical screen will be enough to protect them from disqualification.
 

“What the court said in this Chartis case in effect was that where two lawyers on opposite sides of an ethical screen have a close working relationship on other unrelated matters, that increases the likelihood of inadvertent disclosure of confidential information and that, in those circumstances, compliance with law society guidelines and putting up an ethical screen in a timely way won’t necessarily be regarded as sufficient,” says Gavin MacKenzie.

January 27, 2017

The latest issue of the Education & Law Journal (volume 26.1) features an article by Brooke MacKenzie on the potential for professional liability and discipline against educators on the basis of their social media conduct outside the classroom.

The article reviews the jurisprudence in Canada and the United States on the topic, proposes a modified framework that recognizes the ubiquity of social media while maintaining public confidence in the public education system, and suggests practical tips for teachers in conducting themselves on social media and addressing any issues that may arise.

December 07, 2016

MacKenzie Barristers presented oral arguments to the Supreme Court of Canada yesterday in the appeal of Google v Equustek Solutions Inc.

Gavin MacKenzie and Brooke MacKenzie represented an intervener, the International Federation of Film Producers’ Associations, in an appeal addressing superior courts’ jurisdiction to make ancillary orders to enforce claimants’ rights on the internet.

December 06, 2016

Gavin and Brooke’s latest “Conduct Becoming” column was published in the CBA’s National magazine today. “Should lawyers have a monopoly over the provision of legal services” notes that lawyers cannot meet the public’s need for legal services, and suggests that it is preferable to allow qualified non-lawyers to fill this gap, rather than allowing the public’s needs to go unmet.

December 02, 2016

Gavin MacKenzie and Brooke MacKenzie appeared in the Ontario Court of Appeal today in Ontario v Chartis Insurance Company of Canada. MacKenzie Barristers represented the appellant, seeking to reinstate Justice O’Marra’s decision in the Ontario Superior Court confirming that a law firm implemented an effective conflict screen and ought not be disqualified from representing its client in a complex insurance coverage matter.

November 28, 2016

MacKenzie Barristers was featured in the Law Times this week in an article about lawyers leaving large firms to set up their own practice, and the reasons why they do so:

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Take long-time litigator Gavin MacKenzie, who worked most of his career at large firms.

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Earlier this year, he opened MacKenzie Barristers Professional Corporation, a litigation boutique, with his daughter, Brooke. They focus on professional liability issues and appeal work.

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"The opportunity to practise with my daughter is an opportunity most lawyers do not have the privilege of doing," he says.

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Brooke MacKenzie, who worked at a Bay Street firm before obtaining her LLM then deciding to join her dad, says, "It was an opportunity to build a business from the ground up."

November 07, 2016

This year’s edition of the Annual Review of Civil Litigation features an article by Brooke MacKenzie, in which she critically assesses the tort of inducing breach of contract in light of the Supreme Court of Canada’s decision in AI Enterprises v Bram. 

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The Honourable Mr. Justice Todd Archibald, one of the editors of the Annual Review, commented , "Ms. MacKenzie's paper is a tour de force -- both innovative and thought-provoking."

September 27, 2016

Gavin and Brooke’s “Conduct Becoming” column in the latest issue of the Canadian Bar Association’s National magazine uses lawyer jokes to contrast the public’s conception of lawyers’ untrustworthiness with the high level of trust clients have in their own lawyers.

September 14, 2016

An article in this week’s issue of MacLean’s magazine, “The Robin Camp Case: Who Judges Judges?”, quotes Gavin MacKenzie discussing potential reforms to judicial discipline in the wake of the the Canadian Judicial Council’s inquiry respecting Justice Robin Camp.

As chair of the Canadian Bar Association’s task force on judicial discipline, Gavin has previously proposed reforms including expanding the range of sanctions available to the CJC beyond recommending the removal of a judge from office.

“I don’t think it would compromise the judge’s independence that he or she has been disciplined by this governing body,” says Gavin MacKenzie, who chaired the lawyers’ task force. Ontario’s provincial council, he notes, can reprimand judges, suspend them and—perhaps most important—order them to take special training as a condition of staying on the bench.

August 01, 2016

Brooke MacKenzie and Gavin MacKenzie were featured in “Dads and Daughters In Law”, and article in Canadian Lawyer magazine on fathers and daughters practising together.

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When long-time litigator Gavin MacKenzie was having his regular coffee meeting with his daughter, Brooke, who is also a litigator, he mentioned he was toying with the idea of leaving big law and opening his own boutique.

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That's when she asked if he needed a third-year lawyer. "Only if it's you," he told her, and thus was born MacKenzie Barristers Professional Corporation, a litigation boutique that focuses on appeal work and professional responsibility and liability issues.

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Brooke, who was on a leave of absence from McCarthy Tétrault LLP finishing her LLM, says, "When my dad proposed this idea... it was a no-brainer. He has the kind of practice I dreamed of."

June 23, 2016

Gavin and Brooke’s latest “Conduct Becoming” column in the Canadian Bar Association’s National magazine discusses three ethical issues for lawyers arising out of the Panama Papers scandal, including the importance of securing confidential information and the role of solicitor-client privilege in the leak.

June 06, 2016

Gavin MacKenzie and Brooke MacKenzie are thrilled to announce they are now practising together at a new litigation boutique, MacKenzie Barristers P.C.

Gavin has been practising law in Toronto since 1977, most recently at DLA Piper Canada. Before joining MacKenzie Barristers, Brooke practised litigation at McCarthy Tétrault LLP. She was called to the bar of Ontario in 2013.

We are very excited about this new venture, which provides us with the unique opportunity to litigate alongside each other as father and daughter. Our firm will concentrate on civil appeals and professional liability work.

The debut of our new firm was featured in the media, including the Legal Post and the Law Times.