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National’s best articles of 2013

A look back at the year's most popular stories.


It was 2013. Edward Snowden hired a Canadian lawyer after becoming the sensation of the year. Lawful access was killed before it was resurrected. Ottawa tabled a free trade deal with Europe.  The Supreme Court was asked about possible paths to Senate reform. And the world lost a great unifier with a great feel for justice.

1. The Whistleblower, by Roderick Macdonell

Last December, Edgar Schmidt, the general counsel in the Legislative Services Branch of the federal Department of Justice, personally served the Office of the Attorney-General with a statement of claim, alleging that his own ministry had acted unlawfully by failing to properly review the constitutionality of draft legislation. Read more

2. The wolf  & the sheep, by Beverley Spencer

In the North, there is a different dimension to the access to justice discussion. Profound linguistic, geographic, social and cultural differences create unique challenges to delivering justice in the emerging territory. And delay and resource constraints sometimes have deadly consequences. Read more

3. Want to stand out from the pack? by Katya Hodge

Finding articles is tough. Twelve per cent of Ontario law school graduates were unable to get articling jobs in 2011, according to statistics from the Law Society of Upper Canada. The articling crisis, coupled with increased enrolment in law schools, makes the search for positions a fierce competition. Read More

4. Labour pains, by Luis Millán

Is organized labour coming under attack in Canada? Members of the labour movement, reeling from a shifting economy and dwindling membership in the private sector, seem to think so. They decry Ottawa and the provinces’ willingness in recent years to use back-to-work legislation to put an end to bargaining disputes. They denounce a controversial private member’s bill that will place onerous financial disclosure requirements on unions that passed third reading in the House of Commons and, as of this writing, is before the Senate. And now they dread the possibility that the Rand Formula, which for more than a half century has required employees represented by unions to pay dues, will come under increasing scrutiny. Read more

5.  The client-driven revolution, by Kim Covert

“Historically, lawyers have had a monopoly on the delivery of legal services in Canada,” says Bruce LeRose, Q.C., a former law society president and a managing partner at Thompson, LeRose and Brown in Trail, B.C. “But … we’ve done surveys out here and the information that we have is that lawyers are now only delivering about 15 per cent of all legal services to the public.” Read more

6. Collecting an old debt, by Justin Ling

“The art of taxation,” Louis XIV’s treasurer Jean-Baptiste Colbert once said, “consists in so plucking the goose as to obtain the largest possible amount of feathers with the smallest possible amount of hissing.” But what if the tax collector is the one doing the hissing? Case in point, a group of 11 Kahnawake gas retailers, represented by BCF lawyer Timothé Huot in Jack W. Leclaire, et al. v. Attorney General of Canada, et al., are fighting measures that would force them to act as tax-collecting agents for the province of Québec. Read more

7. Surviving progress, by Mitch Kowalski

The heydays of Law 1.0 (read: pre-2008) was truly the golden age of being a lawyer. But all golden ages must come to an end because none of this could be sustained forever.The partnership model has proved itself to be tragically unstable because partners tend to be more loyal to themselves than to the partnership. Long-term strategy is forgone at the expense of the short-term profits annually paid out to each partner — whereas good governance in large partnerships is but a pipe-dream. And now, associates are asked to work more and more years in competition for fewer partnership positions that provide no job security whatsoever. Read more

8. Leaking information, by Pablo Fuchs

Law firms are custodians of their clients’ information. As such, they’re expected to ensure that confidential information doesn’t fall into the wrong hands. But are they really doing enough on this front? Read more

9. Pathway to justice, by Kate Dunn

Public interest litigants usually face a tough battle for standing, as the long fight to strike down Canada’s prostitution laws has shown. In 2008, the Supreme Court of British Columbia denied anti-violence advocate Sheryl Kiselbach and a group representing Vancouver sex workers the right to bring a suit challenging the prostitution-related provisions of the Criminal Code. Neither party was at risk of being charged under the provisions in question, the government argued. Read more

10. Class actions: Their day in court, by Luis Millán

No less than 123 class actions were filed across the country last year, up from 106 in 2011 and nearly four times as many as 2006, according to the Canadian Bar Association’s National Class Action Database. Over the past few years, class action suits have spread into new areas of law: securities, environmental, competition and labour, to name but a few. What’s more, uncertainty and ambiguity are always a key challenge for business, and when it comes to class actions, it’s been hard to tell where the complex and shifting legal landscape is heading next. Read more

11. Nay on say, by Agnese Smith

As companies around the world prepare for their annual springtime chat with shareholders, some Canadian boards may be sighing with relief. Unlike their peers south of the border and across the Atlantic, firms here can still choose whether to consult with shareholders about how much to pay their chiefs. Read more

12. The art of negotiation, by Ann Macauley

Prepare, ask questions, and get your ego out of the way. Negotiation is the most important skill people use all the time, says Charles Craver, who teaches the subject at George Washington University Law School in Washington, D.C. Yet few lawyers have been trained in the art of the deal. . Read more

13. Positive rights, by Emmett Macfarlane

It is not the appropriate role of courts to write budgets and determine the allocation of scarce resources in a democratic society. Many view the imposition of positive constitutional obligations as an order of magnitude more offensive to the basic presumption that democracy ought to function through the decisions of elected representatives. Limiting itself to enforcing negative rights allows the Court to serve as an appropriate check to ensure the “passions of the majority” do not cross a constitutional line but also ensures the Court doesn’t cross too deeply into the realm of policy-making. Read more