September 16, 2020

Gavin MacKenzie profiled in article, "When lawyers are in trouble, to whom do they turn?"

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:

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...

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.

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

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

Gavin MacKenzie featured in CBC News on judge's removal from first-degree murder case

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.

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

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.

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

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

You can read the full CBC News article below.

June 24, 2020

Leave to intervene granted in Canada's first "site-blocking" appeal

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). 

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.

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

Brooke MacKenzie featured on an episode of "Exhibit Eh-OK" podcast

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

Law Society ordered to pay lawyer's costs for unfounded discipline allegations

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.

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.

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

May 12, 2020

Brooke MacKenzie's analysis of motions to disqualify counsel published in Queen's Law Journal

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.

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.

March 16, 2020

MacKenzie Barristers is working remotely due to COVID-19 measures

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.

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

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.

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

March 04, 2020

Gavin MacKenzie quoted in Law Times' article "When can a lawyer withdraw from a case?"

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".

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:

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.

“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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