Terms and Conditions of Appointment for Domestic Legal Agents

Archived information

These Terms and Conditions apply to appointments made between May 17, 2016 and May 27, 2021. For Terms and Conditions covering other periods, please refer to the versions applicable to appointments made before May 17, 2016, from May 27, 2021 to February 18, 2026, and after February 18, 2026.

Archived

This page has been archived on the Web.

1. Mandate of the Minister of Justice and Attorney General of Canada

Under the Department of Justice Act,Footnote 1 the Minister of Justice and Attorney General of Canada (the AGC) is responsible for providing legal services to departments and agencies and for superintending the administration of justice in areas of federal jurisdiction. In providing legal services, the Department of Justice (the Department) relies on both in-house counsel and on private sector law practitioners appointed by the AGC as standing or ad-hoc legal agents.

2. Legal agent

2.1 Authority to Act as a Legal Agent

The AGC appoints private sector law practitioners to act as legal agent of the Crown to conduct defined legal services. The appointment creates the agency relationship with the law practitioner, and the letter of appointment issued by the Department, along with these terms and conditions, serve as the retainer or contract that defines the agent’s mandate and circumscribes the agency relationship.

2.2 Public Interest

In providing legal services to the Crown, the legal agent is an advocate who is expected to act in the public interest. The legal agent must act with integrity, fairness and impartiality at all times.

2.3 Status as a Legal Agent

The legal agent is not an employee of the Crown or of any individual department or agency of the Government of Canada, nor retained by any individual federal government department or agency. The legal agent must not hold itself out as an employee of the Government of Canada.

The legal agent must obtain the approval of the Department prior to making any reference to having acted as a legal agent of the AGC in any promotional material, to allow the Department to determine what if any information may be publicly disclosed.

2.4 Conduct of Legal Agent

As a representative of the AGC, the legal agent is expected to uphold the highest standards of personal and professional conduct, and must comply with the code of conduct of the respective law society and respect the intent of the Values and Ethics Code of the Department of Justice.

2.5 Subcontracting Legal Services

The legal agent is not permitted to subcontract the legal services that it has been mandated to perform on behalf of the AGC.

3. Appointment

3.1 Letter of Appointment

The appointment is executed in writing by way of a letter of appointment issued by the Department and formally signed by the legal agent. The letter of appointment defines the legal agent’s mandate, identifies the authorized counsel as well as the Department’s instructing counsel, and outlines the terms of remuneration and any other appointment-specific requirements. The letter of appointment incorporates by reference these Terms and Conditions.

The letter of appointment and any subsequent appointment amendment letters constitute the entire and only agreement between the parties and supersede all previous negotiations, communications and other agreements, whether written or oral, unless they are incorporated by reference in the letter of appointment. There are no terms, covenants, representations, statements or conditions binding on the parties other than those contained in the letter of appointment.

3.2 Date and Tenure of Appointment

The legal agent appointment is effective as of the date specified in the letter of appointment and for the period specified, if applicable, or terminates when the legal agent completes the mandate, when the Department and the legal agent agree to conclude the appointment, or on the date specified by a letter of removal issued by the Department.

The legal agent appointment is at the pleasure of the AGC and may be terminated at any time without prior notice and without cause.

3.3 Certifications and Acceptance of Appointment

By accepting the appointment, the legal agent certifies that at the time of appointment:

  1. It has read, accepts and agrees to be bound by the letter of appointment, which includes these Terms and Conditions;
  2. Each authorized counsel is legally permitted to practice law in the relevant provincial or territorial jurisdiction and is a member in good standing of the applicable provincial or territorial bar or La Chambre des notaires;
  3. Each authorized counsel carries law practice insurance in the province(s) or territory(ies) in which it conducts its practice;
  4. No authorized counsel is subject to any disciplinary proceedings before their Law Society;
  5. It has not, directly or indirectly, paid or agreed to pay, and will not, directly or indirectly, pay a contingency fee to any individual for the solicitation, negotiation or obtaining of the appointment if the payment of the fee would require the individual to file a return under section 5 of the Lobbying Act;
  6. It has not paid or will not pay, give, promise, or offer directly or indirectly to any official or employee of Canada or to a member of the family of such a person, any bribe, gift, benefit, or other inducement, with a view to influencing the entry into the appointment or the administration of the appointment;
  7. Neither the legal agent firm nor authorized counsel is subject to any convictions other than an offence for which a pardon has been granted, under federal statutes, including the Criminal Code;
  8. Neither the legal agent firm nor authorized counsel is subject to personal or professional bankruptcy or insolvency;
  9. No authorized counsel is in default of a court order or decision or a family support obligation by which the individual may be bound;
  10. It is not aware of any real, apparent or potential conflict of interest, other than those that it has already disclosed to the Department;
  11. It has disclosed any authorized counsel who is a former public servant in receipt of a pension pursuant to the Public Service Superannuation Act or a lump sum payment pursuant to the National Joint Council Work Force Adjustment Directive;
  12. Any authorized counsel who has been disclosed as a former public servant is in compliance with any post-employment conditions pursuant to the Treasury Board Policy on Conflict of Interest and Post Employment, including any post-employment conditions that may have been set by the individual’s former Deputy Head;
  13. Any authorized counsel who has been disclosed as a former public office holder is in compliance with the post-employment measures set out in the Conflict of Interest Act;
  14. It has disclosed if any authorized counsel or managing partner is from the AGC’s immediate family (i.e. a spouse, common-law partner, child, sibling or parent), or is a member of the immediate family of other ministers or party colleagues in the House of Commons and the Senate; and,
  15. No member of the House of Commons or the Senate will be permitted to share any part of the agency relationship with the AGC, or to share any resulting benefit.

Compliance with all certifications provided by the legal agent and the certifications contained herein is a condition of the appointment and subject to verification by Canada during the tenure of the appointment. In addition, these certifications apply throughout the tenure of the appointment. Should the status of the legal agent firm or of any authorized counsel change in respect to these certifications during the appointment period, the legal agent must notify the instructing counsel accordingly, in writing.

3.4 Amendments and Waivers

The Department will effect in writing any amendment to the mandate, scope, duration of appointment, remuneration, or legal team, and the legal agent must confirm its acceptance of the amendment in writing.

While the legal agent may discuss any proposed modifications to the work with other representatives of Canada, Canada will not be responsible for the cost of any modification unless it has been incorporated into the terms of appointment.

A waiver must only be valid, binding or affect the rights of the parties if it is made in writing.

The waiver by the Department of a breach of any condition of the terms of appointment must not be treated or interpreted as a waiver of any subsequent breach and therefore must not prevent the Department from enforcing that term or condition in the case of a subsequent breach.

3.5 Priority of Documents

If there is a discrepancy between the wordings of any documents that appear on the list below, the wording of the document that first appears on the list has priority over the wording of any documents that subsequently appear on the list.

  1. Letter of appointment
  2. Statement of Work
  3. Terms and Conditions of Appointment for Domestic Legal Agents
  4. Legal agent’s Expression of Interest

3.6 Compliance with Applicable Laws

The letter of appointment is interpreted and governed, and the relations between the parties determined, by the laws in force in Ontario, unless otherwise specified in the letter of appointment.

4. Professional Responsibilities

4.1 Duty of Loyalty

The legal agent must not engage in legal work that could place demands on the legal agent that are inconsistent with its duties as a legal agent of the AGC or that could call into question its duty of loyalty to the Crown as its client. Legal agents must not publicly criticize the integrity of senior government officials or government institutions, or the integrity of Federal Ministers.

4.1.1 Duty to Avoid Conflicts of Interest

The legal agent must take all necessary steps to avoid a conflict of interest. This obligation exists at the time of appointment and continues throughout the life of the appointment.

Specifically, legal agents must comply with:

  1. The applicable professional rules of conduct; and,
  2. The applicable law, including the Supreme Court of Canada’s decisions in Martin v. Gray, [1990] 3 S.C.R. 1235, R. v. Neil, [2002] 3 S.C.R. 631, Canadian National Railway Co v. McKercher LLP, [2013] 2 S.C.R. 649.

4.2 Deemed Conflict of Interest

A legal agent may be deemed to be in a conflict of interest when the legal agent represents, without consent, a client whose legal interests are directly adverse to the immediate legal interests of the Crown.

The Department does not generally prevent legal agents from representing clients against the Crown in unrelated matters where there is no danger of misuse of confidential information, unless the case against the Crown is of sufficient importance and public interest that it may jeopardize the legal agent’s duty of loyalty and commitment towards the Crown.

The Department determines, on a case-by-case basis, what it deems to be a conflict of interest in relation to the legal agent appointment, including defining related matters that constitute a direct conflict, as well as unrelated matters for which the Department does not want consent to be inferred, if any. This is intended to circumscribe the identification and disclosure obligations on the part of the legal agent, as well as to facilitate the assessment of conflicts of interests by the Department.

4.3 Obligation to Disclose

4.3.1 Disclosure in Relation to Conflicts of Interest

The legal agent is not required to disclose all of its unrelated cases against the Crown. The legal agent must exercise due diligence in defining and disclosing conflicts in accordance with what has been deemed to be a conflict in a given case. The legal agent should provide sufficient information to enable the Department to make an informed decision about whether to have the legal agent act or continue to act on behalf of the AGC despite the existence or possibility of a conflict of interest.

The legal agent must disclose all private interests, including outside activities and assets that could place them in a real, apparent or potential conflict of interest in relation to their potential appointment.

The legal agent must immediately notify the Department if the firm or any members of the firm acquires an interest or becomes involved in a situation during the term of the appointment that would result in a real, potential or apparent conflict of interest.

4.3.2 Disclosure in Relation to Public Sector Obligations

The legal agent must disclose whether any authorized counsel or partner:

  1. is a former public office holder, as defined in the Conflict of Interest Act;
  2. is a former public servant, as defined in the Treasury Board (TB) Policy on Conflict of Interest and Post Employment, and whether the individual is in receipt of a pension pursuant to the Public Service Superannuation Act or a lump sum payment pursuant to the National Joint Council Work Force Adjustment Directive;
  3. is a Member of Parliament or the Senate; and,
  4. Is the spouse, the common-law partner, the child, a sibling, or the parent of any minister of the Crown or other public office holder as defined in the Conflict of Interest Act (L.C. 2006, ch. 9, art. 2).

The obligation to disclose this information continues throughout the life of the appointment.

4.3.3 Disclosure in Relation to Third Party Allegations

If a client of the legal agent or a member of the court raises a concern about or objects to an alleged conflict of interest involving the legal agent, the legal agent must disclose this information to the Department.

4.4 Assessment of Conflicts of Interest

The Department assesses issues that relate to conflict of interest on a case-by-case basis and makes decisions in light of the specific circumstances of the matter at hand with a view to balancing the need to preserve the interests of Crown and the public interest, with the need to meet operational demands.

The Department considers the following factors in determining whether a real, potential or apparent conflict of interest exists and determining an appropriate course of action:

  1. the nature and immediacy of the legal interests at play;
  2. whether the legal interests are directly adverse;
  3. whether the issue is substantive or procedural;
  4. the stage that the matter or proceeding has reached;
  5. the temporal relationship between the matters;
  6. the significance of the issue to the immediate and long-term interests of the Crown;
  7. whether there is a risk that the exchange of confidential information acquired could be abused;
  8. the availability of another law practitioner of comparable expertise and experience;
  9. the extra cost, delay and inconvenience involved in engaging another law practitioner, and the latter’s unfamiliarity with the client and the client’s affairs;
  10. the likelihood of the movement of a law practitioner;
  11. the reasonable expectations of the government department or agency requiring the services of the agent for the particular matter or representation;
  12. the public interest; and,
  13. other related factors.

If the Department is of the opinion that a real, potential or apparent conflict exists as a result of the legal agent’s disclosure or as a result of any other information brought to the instructing counsel’s attention, the Department may require the legal agent to take measures to resolve or otherwise deal with the conflict or may terminate the appointment.

4.5 Duty of Commitment

The legal agent must be committed to the interests of the Crown and must refrain from undermining its relationship with the Crown.

This obligation to the Crown survives the appointment in that the legal agent must not attack legal work that was done during the period he or she was a legal agent or undermine the Crown’s position in relation to issues that were central to the appointment.

4.6 Duty of Candour

The legal agent must disclose any factors relevant to its ability to provide effective representation as a legal agent of the Crown. This obligation applies throughout the life of the appointment.

4.7 Duty of Confidentiality

The legal agent must not use or disclose the Crown’s confidential information obtained during the course of the appointment to the disadvantage of the Crown, or for the benefit of the legal agent or a third person without the express consent of the Crown.

Legal agents and members of the legal agent’s firm, as the case may be, must not discuss Government of Canada legal matters outside of the firm and with colleagues within the firm, unless:

  1. expressly authorized by the Crown;
  2. required by law or a court to do so; or,
  3. required to deliver the information by the Law Society.

4.8 Advance Waivers

As a general rule, the Department does not provide blanket or advance waivers or undertakings in relation to conflicts of interest.

4.9 Political Activity

The legal agent must maintain the principle of political impartiality while representing the Crown and the public interest. Accordingly, legal agents cannot engage in political activities that impair or could be perceived as impairing their ability to perform their legal agent responsibilities in a politically impartial manner. Authorized counsel or partners must immediately disclose to the instructing counsel any involvement as a candidate or as an official agent of a candidate in an election at the federal, provincial or territorial and municipal level, to permit the department to determine an appropriate course of action.

5. Roles and Responsibilities

5.1 Legal Agent Firm Principal Contacts

The following sets out the accountabilities of the principal contacts:

  1. Managing Partner, with responsibility for managing the business relationship between the firm and the Department during the life of the appointment mandate, including designating individuals with accountability for specific aspects of the legal agent appointment, providing any required certifications on behalf of the firm, and formally accepting the letter of appointment and any subsequent amendments;
  2. Lead Counsel, with responsibility for delivering the mandate, managing the legal team, including delegating legal work to the most economical and qualified level of authorized counsel, and seeking any required instructions and approvals from the Department, during the life of the appointment mandate;
  3. Administrative contact, with responsibility for managing administrative activities and billing and payment issues on behalf of the firm, during the life of the appointment mandate; and,
  4. Company Security Officer (CSO) and Alternate Company Security Officer (ACSO), with responsibility for implementing and managing the firm’s system of security controls and safeguards required in accordance with the level(s) of security specified in the letter of appointment.

Where an obligation set out herein is placed on a legal agent as a firm, the appropriate designated contact identified for the matter as per this section is accountable for compliance and responsible for the discharge of the obligation in accordance with their accountabilities.

5.2 Instructing Counsel

The instructing counsel identified in the letter of appointment is the legal agent’s point of contact with the Department. The instructing counsel is responsible for day-to-day instructions to the legal agent team, including instructing, monitoring and evaluating the work of the legal agent, ensuring that the legal agent is informed of pertinent departmental policies, and providing advice and assistance when required.

Where, in accordance with these Terms and Conditions, the legal agent requires the approval of instructing counsel, the legal agent shall obtain the approval, in writing, prior to proceeding. In rare situations, where circumstances warrant that the legal agent proceed without the prior written approval, the legal agent shall notify instructing counsel about the situation at the earliest opportunity and seek ratification.

5.3 Authorized Counsel and Paralegals

The letter of appointment confirms the name(s) of the counsel and paralegal(s) authorized to render services in accordance with the appointment mandate.

The legal agent must provide individuals at the experience levels identified in the letter of appointment. If in the future it is necessary to modify the list of authorized counsel, the agent must obtain appropriate approval from the instructing counsel prior to any services being rendered. If this authority is not obtained in advance, the Department will not approve payment of fees for services rendered.

Individuals identified as Lead Counsel and Managing Partner are expected to assume the relevant responsibilities for the life of the appointment mandate. If however, these individuals become unavailable to continue the work, the legal agent must notify the instructing counsel. The legal agent is responsible for identifying acceptable replacement(s) with the same or greater experience levels and who are equal or superior to the resource being replaced, and for seeking the written approval of instructing counsel prior to providing replacement(s). The Department reserves the right to interview the proposed replacement personnel, at no cost to Canada.

The legal agent must notify the Department of any proposed changes to the Administrative Contact, CSO, or ACSO.

6. Security Requirements

6.1 General

Thelegal agent must implement measures to access sensitive government information, assets, and secure work sites. These measures may include, as appropriate, the need for organization screening and individual security screening. In addition, the legal agent may be required to implement specific physical and information technology (IT) security measures in order to safeguard information and assets on their premises. Specific security requirements are identified in the letter of appointment.

These security measures are designed to prevent the unauthorized disclosure, access, destruction, removal, modification or interruption of sensitive government information and assets provided to or produced by the legal agent in connection with a legal agent appointment. The legal agent must implement the controls and safeguards in accordance with the security requirements specified in the letter of appointment, andany other security measures identified by the Department, as may be required by the necessities of the file.

The Government shall not be liable for any costs or claims of the legal agent arising from the measures taken to meet the security requirements associated with the appointment.

6.2 Identification of Sensitive Information and Assets

The Department identifies the level(s) of sensitive information or assets to be accessed by the legal agent in the context of a legal agent appointment, with one of the following security classifications as appropriate: Protected A, B or C or Classified, which includes Confidential, Secret or Top Secret. The legal agent must safeguard Protected and Classified information or assets according to the security requirements set out in the letter of appointment.

Where the legal agent creates a document, it must give consideration to whether the document needs to be marked as Protected or Classified, and at what level, and ensure the document is marked accordingly.

The legal agent shall not disclose sensitive information or assets to anyone unless the individual has been screened to the requisite level and has a need to know in the context of the legal agent appointment in question. The legal agent should not proceed with a third-party contract where the work involves Protected or Classified information without first consulting instructing counsel.

6.3 Organization Screening

An organization screening is an administrative determination that a firm and individuals who have been screened to the requisite security level and have a need to know, pursuant to the letter of appointment, may have access to sensitive information, assets and secure work sites. There are two types of organization screening: (1) a Designated Organization Screening (DOS), which permits access to Protected information, assets and secure work sites; and (2) a Facility Security Clearance (FSC), which permits access to information, assets and secure work sites up to the specified Classified level.

The Department will, on written application by the firm, conduct a DOS screening or FSC. The determination of a whether a firm will be granted a DOS or FSC will be at the sole discretion of the Department. As part of the organization screening process, the Managing Partner of the firm will appoint a Company Security Officer and Alternate Company Security Officer to implement and manage the system of security controls and safeguards required of the firm in accordance with the level(s) of security applicable to the work to be performed, and as identified in the letter of appointment. In addition, the Managing Partner, as well as the CSO, ACSO and other identified Key Senior Officials, where applicable, must be screened to the requisite level.

6.4 Individual Security Screening or Clearance

All individuals with a need to know who require access to sensitive information, assets or secure work sites in the context of a legal agent appointment, must hold a Government of Canada-granted screening or clearance at the requisite level, or must undergo the required security screening or clearance, in order to carry out work under the appointment.

The Department will, on written application by the legal agent, conduct security screenings or clearances of individuals as per the requirements of the appointment. Individuals requiring access to Protected information must possess a security screening at the Reliability Status level. Individuals requiring access to Classified information must possess a security clearance at the Confidential, Secret or Top Secret level, as specified in the letter of appointment. The granting of an individual security screening or clearance is at the sole discretion of the Department.

6.5 Physical and IT Security Requirements

Where the legal agent is required to access, produce and store Protected or Classified information or assets on its premises, in addition to holding a DOS or FSC, the firm must hold, or work with the Department to obtain, a Document Safeguarding Capability (DSC) at the highest classification level of the documents requiring safeguarding. The Department, on written application by the firm, will assess the firm’s ability to meet the physical and administrative security requirements necessary to obtain a DSC and enable onsite handling and safeguarding of information and assets.

Where the work to be performed has an IT security requirement, the Department may also conduct an assessment of the legal agent’s IT system that will be used to process, transmit and store Protected or Classified information, to ensure the appropriate safeguarding measures have been established.

6.6 Inspection

The Department reserves the right to inspect, at reasonable intervals, the legal agent’s security controls and safeguards, methods, and facilities for compliance with the security requirements. The legal agent is expected to cooperate with the Department and provide full access to their premises and to any information required in the context of an inspection.

Should the Department determine that the legal agent is not in compliance, it will advise the legal agent in writing of the deficiencies. The Department may suspend or revoke the DOS, FSC and/or DSC of the legal agent, or may take other measures to manage any security risks, until the deficiencies are rectified to the satisfaction of the Department.

7. Reporting

7.1 Specific Reporting Requirements

The legal agent must comply with case specific reporting and consulting requirements as established by instructing counsel. These requirements may be defined through the letter of appointment or through instructions provided by instructing counsel during the tenure of the appointment.

At a minimum, the legal agent must:

  1. Provide instructing counsel with regular status reports regarding the evolution of the file;
  2. Advise instructing counsel in a timely fashion of significant developments which might affect the Crown’s exposure;
  3. Apprise instructing counsel of proposed changes to case plan and budget; and,
  4. submit to instructing counsel for approval, all settlement proposals or requests for settlement authority.

and more particularly in the context of litigation, must:

  1. obtain the consent of instructing counsel prior to committing to a trial date;
  2. once a trial date has been set, the legal agent and instructing counsel jointly develop a case plan; and,
  3. advise instructing counsel promptly of any adverse decision or judgment so that a decision may be made with respect to an appeal and instructions provided as to the appropriate steps to take.

7.2 Communications with the Department

All communications with the Department must quote the Justice File Number and the Case and Billing Numbers identified in the letter of appointment.

8. Employment Equity

The Department encourages legal agents to respect its Workplace Equity Policy for Legal Agents, which promotes respect for, commitment to, and implementation of the principles of employment equity by law practitioners appointed as legal agents of the AGC. The legal agent commits to communicating its commitment to respect the Department’s workplace equity principles to all staff within the firm or, in the case of individual agents, to all staff in the firm with whom the legal agent works directly.

9. Official Languages

The legal agent must be able to communicate in the official language of the other party to any legal proceedings before a federal court, in accordance with the Official Languages Act. It is the general policy of the Department that pleadings before a provincial or territorial court should be in the official language of the other party whenever possible.

The legal agent should consult instructing counsel immediately should assistance be required to respect the official languages obligations of the Department.

10. Information Management

10.1 Retaining, Archiving and Returning Records

The Department must retain litigation files and advisory files for a period of twelve years from the date final action has taken place, and real property files for a period of twenty-five years. The legal agent must therefore comply with written procedures received from instructing counsel regarding the maintenance of active files, and the return, archiving or destruction of closed files, subject to law society requirements.

The Department’s records in the possession of a legal agent must only be destroyed further to written permission or instruction from instructing counsel.

10.2 Parliamentary, Media and Other Inquiries

Only designated spokespersons release information to members of Parliament, media representatives or members of the general public. The legal agent is not a de facto spokesperson unless otherwise authorized in writing by the instructing counsel.

Where contacted by the media or when in receipt of a media or parliamentary inquiry, the legal agent must immediately notify the instructing counsel. Instructing counsel will then determine and instruct as to the best course of action according to the specific circumstances of the case. The legal agent is not required to bring inquiries on routine matters such as trial dates to instructing counsel’s attention unless the circumstances warrant it.

The legal agent must not initiate contact with the media in respect of any matter arising in the course of its appointment without specific approval or instructions from instructing counsel. Anything the legal agent says should be considered ‘on the record’ and may end up in the public domain. Therefore, the legal agent must exercise the same care and attention when dealing with anyone seeking information through social media, and not just traditional media outlets.

10.3 Access to Information Requests

The Access to Information and Privacy (ATIP) Office of the Department is responsible for processing all requests received by the Department under the Access to Information Act (ATIA) and the Privacy Act (PA). Subsection 4(1) of the ATIA gives individuals a right of access to records under the control of a government institution.

Legal agent records relating to the Department’s matters are deemed to be under the “control” of the Department for the purposes of ATIA and PA. Where the Department is required to respond to an access to information request, the legal agent must submit all requested records to the Department of Justice ATIP Office in accordance with the instructions provided by instructing counsel. There is a strict 30-day statutory deadline under the ATIA and PA; therefore, the legal agent must respond promptly to the Department’s request, and within the requested timelines.

The legal agent must not directly respond to ATIA or PA requests made by any other federal, provincial or municipal government institutions. Requests for such records must be directed immediately to the instructing counsel.

The legal agent must not provide legal opinions to law enforcement agencies or federal government departments regarding access to information requests. Any such request must be directed immediately to the instructing counsel.

11. Proactive Disclosure

The legal agent consents to the public disclosure of information related to its appointment as a legal agent, including billing information. If any authorized counsel is a former public servant in receipt of a pension pursuant to the Public Service Superannuation Act, the legal agent agrees that this information will be reported on the Department’s website as part of the published proactive disclosure reports.

12. Ownership of File Records

All documents or materials created during the conduct of work associated with a legal agent appointment are the property of the Department.

Ownership of the product of legal research, legal analysis or legal opinion, regardless of whether it is in the form of handwritten notes, an e-mail, or a memorandum of law (draft or formalized) resides with the Department.

13. Remuneration and Billing

13.1 Remuneration Arrangement

The specific legal agent remuneration is detailed in the letter of appointment and is subject to the provisions set out below. The remuneration arrangement is negotiated for each appointment, in the context of the particular circumstances of the work in question, and should not be considered a precedent for future appointments.

13.2 Billable Services

The legal agent must bill for the delivery of legal services which fall within the scope of its appointment mandate. The legal agent must only claim fees incurred in the delivery of legal services by authorized personnel and in accordance with the negotiated remuneration arrangement, as defined in the letter of appointment.

The legal agent must respect the government spending principles of economy, efficiency and effectiveness, keeping in mind the need to balance the importance of the case to the Department or the concerned federal government department or agency, with its professional responsibilities.

13.3 Non-Billable Services

The legal agent must not claim fees incurred as a result of services performed by staff members not specifically authorized to render services in accordance with the appointment mandate. This includes researchers, librarians, secretaries, administrative assistants, computer operators, bookkeepers, corporate and other records or document clerks or word processing operators.

Time spent performing tasks that are administrative in nature and not “legal value-added”, is not billable. The legal agent is not permitted to charge as a separate item, work of an administrative nature. Examples of administrative tasks include:

In addition, the Department will not reimburse the legal agent for the following:

13.4 Internal Printing and Photocopy Costs

The legal agent must limit the use of photocopies, and use electronic document exchange to the extent feasible. The legal agent will not be reimbursed its laser printing costs, or reimbursed for photocopies where copies are made for internal purposes. The legal agent will, however, be reimbursed at cost for photocopies required for external purposes related directly to the case, so long as the cost does not exceed the rates ordinarily charged by commercial printing companies.

13.5 Daily Limit on Billable Hours

Claims for fees are subject to a daily maximum limit of ten hours, unless otherwise specified in the letter of appointment or authorized by instructing counsel. The Department will not accept fees claimed in excess of the established limit, including travel time.

13.6 Work Performed by Articling Students and Paralegals

The legal agent may employ paralegals and articling students to render services, provided the use of those resources is set out in the letter of appointment or subsequently approved by the Department, and provided that the work conducted by those resources is in accordance with applicable Law Society rules. The rate of pay for services rendered by paralegals and articling students must be in accordance with the letter of appointment.

Paralegals and articling students must be restricted to performing tasks or activities that require the application of legal skills, judgement and experience acquired by professional training and practice (“legal value-added”). While the legal agent may require paralegals and articling students to perform secretarial or clerical tasks, it cannot bill for time spent performing administrative functions. Also, the legal agent must not claim fees for time spent educating associates, students, paralegals or technical staff.

13.7 Disbursements

13.7.1 Third-Party Services

In the performance of its mandate, the legal agent may contract under its own capacity, work of a non-legal nature with third-party service providers. In entering into any such contracts, the legal agent must make it clear to the third-party service provider that the contract is between the legal agent and the service provider and not between the Crown and the service provider.

The Department will treat expenditures related to the delivery of third-party services as disbursements. The legal agent will be reimbursed at cost, without any allowance for profit and/or administrative overhead, for all necessary and reasonable disbursements incurred in the delivery of the mandated legal services, subject to the conditions found in the following sections. In incurring such expenditures, the legal agent should be guided by the principles of economy, efficiency and effectiveness in the spending of public funds.

13.7.2 Conditions for Reimbursement

Unless otherwise specified in the letter of appointment, the legal agent must obtain the prior written authorization of instructing counsel for all disbursements in excess of $2,000.00.Footnote 2 This threshold does not apply to disbursements relating to the services of expert and material witnesses or to travel, all of which require prior written authorization regardless of dollar value, before booking travel or retaining experts and/or witness.

Where claiming an expenditure for which prior written authorization of the Department is required, the legal agent must provide a copy of the authorization to support the claim, along with a copy of the invoice from the third-party service provider, from the expert or the witness.

13.7.3 Court Filing Fees

The Department will reimburse the legal agent for court filing fees paid in accordance with established court schedules.

13.7.4 Travel and Living

The Department will reimburse the legal agent for authorized travel and living expenses reasonably and properly incurred in the performance of the work, at cost, in accordance with the meal, private vehicle and incidental expenses provided in Appendices B, C and D of the National Joint Council Travel Directive and with the other provisions of the directive referring to "travellers", rather than those referring to "employees", and in accordance with Section 7 of the Treasury Board Special Travel Authorities directive.

The legal agent must seek the prior authorization of instructing counsel to travel. The legal agent must provide an estimation of anticipated travel costs to instructing counsel when seeking authorization. When making travel arrangements, the legal agent must consider the most reasonable and economical means of transportation.

The legal agent must seek the lowest available airfares appropriate to particular itineraries, and must make bookings as far in advance as possible to benefit from optimal seat pricing.

The legal agent must consult the Public Services and Procurement Canada Accommodation and Car Rental Directory when making hotel reservations or renting a vehicle, reference http://rehelv-acrd.tpsgc-pwgsc.gc.ca/index-eng.aspx.

The legal agent must ensure that claims for travel costs are accompanied by the claim for the substantive work done on the file that necessitated the travel.

13.7.5 Travel Time

Where the legal agent is required to travel at the request of Canada, the time spent in travel between the two locations, by the most reasonable and economical means of transportation, is billable time at a rate that should not exceed 50% of the approved counsel rate, unless the legal agent is able to work on the file while travelling, in which case the approved rates can be applied.

13.7.6 Transportation

Taxis, shuttles and local transportation services are alternatives for short local trips. The Department will reimburse the legal agent for actual expenses, so long as they are supported by receipts, regardless of the amount claimed. The Department will not reimburse the legal agent for costs associated with travel between the place of residence and usual place of business.

13.7.7 Mileage

Where the legal agent’s private car is used for the purposes of travel requested by Canada, the Department will permit the legal agent to claim as a disbursement a fixed amount per kilometre in accordance with the allowances set out in the National Joint Council Travel Directive.

13.7.8 Regular Mail and Courier Charges

The legal agent will not be reimbursed the costs associated with the transmission of documents through regular mail. The legal agent will be reimbursed courier costs.

13.7.9 Non-Billable Expenses

Despite that the following costs may have been or may be reasonably and properly incurred by the legal agent in the performance of the mandate, they are considered non-applicable costs for purposes of the appointment:

14. Submission of Accounts

14.1 Billing Period

The legal agent must, at a minimum, bill the Department on a quarterly basis.

The federal government fiscal year is from April 1st to March 31st of the next calendar year. The legal agent must only bill for services rendered and disbursement costs incurred during one fiscal year, and must submit all accounts (interim and final) no later than April 10th of each new fiscal year for work performed in previous fiscal year, even if the work on the file is not yet complete.

14.2 Claiming Fees

The legal agent must submit an itemized account to instructing counsel for verification. The account should provide a detailed description of activities performed and time spent in chronological order. Each account must refer to one file or piece of work assigned.

The portion of the account for professional fees should be structured so that the Department and the client can easily identify:

14.3 Claiming Disbursements

The legal agent must itemize and record all disbursements against the appropriate file on which the cost was incurred, and must structure the disbursements so that the Department and the client can easily identify:

Unless otherwise specified, the Department requires that individually-itemized claims for disbursements in excess of $50.00 be supported by proof of payment. The legal agent must ensure that all receipts related to expenditures less than $50.00 are kept on file in the event they are required by the Department.

The legal agent must submit accounts together with any reports or documents required by instructing counsel.

14.4 Case and Billing Numbers

The legal agent must ensure that the case and billing numbers set out in the letter of appointment are referenced in all accounts. If the case number and billing number are omitted or used incorrectly, the processing of the account may be delayed, or the Department will return the account to the legal agent for correction.

14.5 Taxes

Federal government departments and agencies are required to pay applicable taxes. The rate of tax to charge for a supply is determined by the province or territory in which the supply is made, referred to as the place of supply, and is dependent on the type of supply. This is governed by the place of supply rules, available at: http://www.cra-arc.gc.ca/placeofsupply/.

In participating provinces, the Goods and Services Tax (GST) and the Provincial Sales Tax (PST) have been replaced by the Harmonized Sales Tax (HST). In the remaining provinces and territories, GST is imposed on taxable goods and services. There may also be a provincial sales tax or a retail sales tax in place for which the government may or may not be exempt. For the listof participating provinces, and the current GST or HST rates for each province and territory, the legal agent should refer to http://www.cra-arc.gc.ca/tx/bsnss/tpcs/gst-tps/gnrl/menu-eng.html. For additional information, the legal agent should consult https://apps.cra-arc.gc.ca/ebci/iesl/clicktotalk/ntr.action.

It is the sole responsibility of the legal agent to charge taxes in accordance with applicable legislation.

15. Review of Agent Accounts

The Department is responsible for taxing all legal agent accounts before payment is made. Taxation involves examining the account to ensure that it is accurate and complete, and ensure that fees and disbursements are reasonable for the services rendered and billed in accordance with the mandate, the letter of appointment, and these Terms and Conditions.

Where the Department identifies problems with the services or the account, instructing counsel will notify the legal agent within fifteen (15) calendar days of receipt of the account, advising what amounts need to be corrected, adjusted or placed on hold pending clarification or supporting information from the legal agent, and the reasons. The Department will tax any amount not in dispute within fifteen (15) calendar days of receipt of the original account, adjusted account, or supporting information.

16. Payment

16.1 Thirty Day Payment Period

As stipulated in the Treasury Board Directive on Payment Requisitioning and Cheque Control, Canada’s standard payment period is thirty (30) days. The payment period is measured from the date an agent account is received in acceptable form and content. A payment is considered overdue on the 31st day following that date and interest will be paid automatically in accordance with Section 16.2, below.

Where the legal agent account requires correction, adjustment or supporting information, the 30-day payment period re-commences upon receipt of the revised account or the replacement or corrected work. Failure by the Department to notify the legal agent within fifteen (15) calendar days must only result in the date specified in the previous subsection to apply for the sole purpose of calculating interest on overdue accounts, as set out in Section 16.2, below.

16.2 Interest on Overdue Accounts

Canada will pay to the legal agent simple interest at the Average Rate plus 3 percent per year on any amount that is overdue, from the date that amount becomes overdue until the day before the date of payment, inclusive. The legal agent is not required to provide notice to the Department for interest to be payable.

Canada will pay interest in accordance with this section only if Canada is responsible for the delay in paying the legal agent.

For the purpose of this section:

16.3 Overdue Accounts

The legal agent must direct any inquiries regarding the status of payment of an account to the instructing counsel.

17. Legal Agent Performance

17.1 Performance Assessment

The Department may conduct periodic performance assessments of the legal agent’s activities. The review may have an influence on the continuation of an existing appointment as well as on opportunities to be considered for prospective appointments. The instructing counsel or another representative of the Department may communicate periodically with the legal agent to discuss performance, seek details and clarification that relate to satisfaction with service, price and results.

The Department may define specific assessment criteria in the letter of appointment and/or statement of work, or through instructions provided during the tenure of the appointment.

18. Terminating the Appointment

A legal agent appointment is at the pleasure of the AGC. It can be terminated at any time without prior notice.

If the legal agent made a false declaration in its submission or makes a false declaration under the appointment, such false declaration may result in a termination under these Terms and Conditions. If the legal agent becomes bankrupt or insolvent, the Department may immediately terminate the appointment.

Where the Department chooses to terminate the appointment due to the legal agent’s performance, the Department may reduce or disallow an account, initiate a complaint before the appropriate Law Society, or initiate a civil action against the legal agent, depending on the circumstances.

Upon termination of the appointment, instructing counsel may require the legal agent to deliver to the Department, in the manner and to the extent directed by the instructing counsel, any completed parts of the work, not delivered before the termination notice was received.

19. Audits

19.1 Audit of Compliance

The Department may conduct audits of all records created and maintained by the legal agent in the course of the appointment to monitor compliance with the letter of appointment and these Terms and Conditions. The legal agent must comply fully with any audits.

19.2 Financial Audits

The legal agent must keep proper accounts and records of the cost of performing the work and of all expenditures or commitments made by the legal agent in connection with the work, including all accounts, receipts and vouchers.

If the terms of appointment include payment for time spent by the legal agent, its employees, representatives, or subcontractors performing the work, the legal agent must keep a record of the actual time spent each day by each individual performing any part of the work.

Unless the Department has consented in writing to its disposal, the legal agent must retain all the information described in this section for six (6) years after it receives the final payment under the appointment, or until the settlement of all outstanding claims and disputes, whichever is later.

During this time, the legal agent must make this information available for audit, inspection and examination by the representatives of Canada, who may make copies and take extracts. The legal agent must provide all reasonably required facilities for any audit and inspection and must furnish all the information as the representatives of Canada may from time to time require to perform a complete audit.

The amount claimed under the appointment, calculated in accordance with the remuneration provisions in the letter of appointment, is subject to government audit both before and after payment is made. If an audit is performed after payment, the legal agent agrees to repay any overpayment immediately on demand by Canada. Canada may hold back, deduct and set off any credits owing and unpaid under this section from any money that Canada owes to the legal agent at any time (including under other appointments). If Canada does not choose to exercise this right at any given time, Canada does not lose this right.

20. Dispute Resolution

In the event of a disagreement regarding any aspect of the work, any instructions given under the appointment, any contractual issues or any billings, the parties agree to attempt to resolve the dispute through negotiations or other mutually agreeable dispute resolution process.

All information exchanged during the negotiations or any subsequent dispute resolution process will be regarded as ‘without prejudice’ communications for the purpose of settlement negotiations and must be treated as confidential by the parties and their representatives, unless otherwise required by law. However, evidence that is independently admissible or discoverable will not be rendered inadmissible or non-discoverable by virtue of its use during the negotiations or other dispute resolution process.

21. Notice

Any notice under the appointment must be in writing and may be delivered by hand, courier, mail, facsimile or other electronic method that provides a paper record of the text of the notice. It must be sent to the party for whom it is intended at the address stated in the letter of appointment. Any notice must be effective on the day it is received at that address. Any notice to Canada must be delivered to the instructing counsel.

22. Survival

All the parties’ obligations of confidentiality, representations and warranties set out in the letter of appointment and these Terms and Conditions as well as the provisions, which by the nature of the rights or obligations might reasonably be expected to survive, will survive the expiry or termination of the appointment.

Annex A: Definitions

Unless the context otherwise requires:

“Ad hoc legal agent”
means a legal agent appointed to provide services with respect to a specific case and/or piece of work, or aspect of a case and/or piece of work;
“Appointment”
means the exercise by the AGC of his or her authority to select and mandate a private sector law practitioner to act as agent of the Crown and conduct defined legal services;
“Assets”
means all tangible or intangible things of the Government of Canada including but not limited to information in all forms (written, verbal or visual) and media, networks, systems, material, real property, financial resources, employee trust, public confidence and national and international reputation;
“Authorized counsel”
means the law practitioner(s) within a specific firm appointed as a legal agent authorized to work on a specific case or piece of work, in accordance with the terms of the appointment mandate;
“Billing number”
means the number assigned to the file by the departmental financial system for billing and reporting purposes. This number is provided to the legal agent in the letter of appointment;
“Canada”, “Crown”, “Her Majesty” or “the Government”
means Her Majesty the Queen in right of Canada;
“Case number”
means the number assigned to the file by the departmental financial system to track the details of the legal agent appointment. This number is provided to the legal agent in the letter of appointment;
“The Department”
means the Department of Justice;
“Disbursements”
means third-party expenses incurred by the legal agent in the delivery of the mandated services, such expenses which would otherwise have been paid directly by the Department had the Department handled the transaction itself;
“File number”
means the number assigned to the paper and electronic file maintained by instructing counsel for case management, timekeeping, document management, and reporting. This number is provided to the legal agent in the letter of appointment;
“Firm”
means a legal entity whose legal form may be a sole proprietorship, partnership, or corporation;
“Former public officer holder”
means those individuals defined in the Conflict of Interest Act, i.e. ministers of the Crown, ministers of state, parliamentary secretaries, members of ministerial staff, including advisers, the Chief Electoral Officer, Governor in Council appointees, other than those specifically excluded under the Act, ministerial appointees approved by the Governor in Council, and a person or member of a class of persons is designated under subsection 62.1(1) or 62.2(1) of the Act;
“Former public servant”
means any former member of a department as defined in the Financial Administration Act, a former member of the Canadian Armed Forces or a former member of the Royal Canadian Mounted Police;
“Instructing counsel”
means the Department of Justice legal counsel identified as the individual responsible for the day-to-day administration of the work under the Appointment, including instructing, monitoring and evaluating the work of the legal agent and liaising with the client department or agency;
“Law practitioner”
means lawyers, law firms, notaries and notary offices, law professors or former judges, as applicable;
“Law Society”
means the body governing lawyers or notaries in Canada, in a given province or territory;
“Legal agent”
means a private sector law practitioner, including lawyers, law firms, notaries and notary offices, law professors or former judges, as applicable, appointed by the AGC to provide specific legal services to the Crown. Unless otherwise specified in these Terms and Conditions, legal agent refers to both the individual identified as authorized counsel and to the legal entity or firm of which the individual is a part;
“Legal services”
means the provision of legal advice and opinions; the regulation or conduct of litigation; the drafting of legislation or regulations; the negotiation and drafting of other legal documents such as contracts, agreements, etc., or the provision of general assistance on matters affecting a client’s legal position, as the case may be;
“Mandate”
means all the activities and services required to be delivered or performed by the legal agent under the appointment, as described in the statement of work and the letter of appointment;
“Parties”
means the legal agent and Canada, as represented by the AGC;
“Record”
means information created, received, and maintained by an organization or person for business purposes, legal obligations, or both, regardless of medium or form. Includes any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microform, sound recording, videotape, machine readable records, and any other documentary material, regardless of physical form or characteristics, and any copy thereof;
“Sensitive Information”
means Government information that has been designated as Protected or Classified;
“Standing legal agent”
means a legal agent appointed for a finite period of time to carry out defined work on a recurrent, as needed basis; and,
“Statement of work”
means the description of the nature of the legal agent appointment, including the mandate, scope, legal team profile, and associated roles and responsibilities.