Terms and Conditions of Appointment for Domestic Legal Agents

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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:

• It has read, accepts and agrees to be bound by the letter of appointment, which includes these Terms and Conditions;
• 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;
• Each authorized counsel carries law practice insurance in the province(s) or territory(ies) in which it conducts its practice;
• No authorized counsel is subject to any disciplinary proceedings before their Law Society;
• 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;
• 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;
• 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;
• Neither the legal agent firm nor authorized counsel is subject to personal or professional bankruptcy or insolvency;
• No authorized counsel is in default of a court order or decision or a family support obligation by which the individual may be bound;
• It is not aware of any real, apparent or potential conflict of interest, other than those that it has already disclosed to the Department;
• It has disclosed any authorized counsel who is a former federal 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;
• Any authorized counsel who has been disclosed as a former federal 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;
• Any authorized counsel who has been disclosed as a former federal public office holder is in compliance with the post-employment measures set out in the Conflict of Interest Act;
• 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,
• 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.

• Letter of appointment
• Statement of Work
• Terms and Conditions of Appointment for Domestic Legal Agents
• 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.

3.7 The Attorney General of Canada’s Directive on Civil Litigation Involving Indigenous Peoples

The Department encourages legal agents to read the Directive on Civil Litigation Involving Indigenous Peoples, which promotes resolution and settlement, and seeks opportunities to narrow or avoid potential litigation. The Directive instructs that Canada’s approach to litigation involving Indigenous peoples should be constructive, expeditious, and effective in assisting the court to provide direction. The legal agent should consult the instructing counsel should assistance or clarification be required, in order to ensure that the legal agent continues to respect the Department’s Directive on Civil Litigation involving Indigenous Peoples.

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