Aboriginal Affairs Portfolio Evaluation
4. Key Findings
This section combines information from all lines of evidence and presents the findings according to the broad evaluation issues of relevance and performance.
4.1. Relevance
The evaluation considered the relevance of the AAP with respect to the continued need for its services given the demand for legal services; the responsiveness of the Portfolio to federal government priorities, roles and responsibilities; as well as the AAP’S support of Justice Canada’s strategic outcomes.
4.1.1. Continued need for the AAP
A noticeable acceleration in the demand for legal services concerning Aboriginal peoples began in the 1970s following the Supreme Court of Canada’s confirmation of the existence of Aboriginal title as a concept in Canadian common law (see Calder et al. v. Attorney-General of British Columbia). The demand continued to increase following the formal establishment of the Constitution Act, 1982, which includes Section 35 that provides protection to the Aboriginal and treaty rights of Aboriginal peoples in Canada.
The refinement of the definition of Aboriginal rights and title is an example, demonstrated through the ruling of Lax Kw’alaams Indian Band v. Canada (2011), which articulated how a modern right might evolve from historical practice, the importance of pleadings and characterization of Aboriginal rights, and key restrictions concerning commercial rights.Footnote 8 With reference to Tsilhqot'in Nation v. British Columbia, though the case culminated in a court decision beyond the evaluation period (2014), the ruling confirmed that the Tsilhqot’in had title to a 1,750 square kilometre track of land which the band had historically occupied.Footnote 9 Evaluation evidence demonstrated that critical AAP activities taking place between 2008-09 and 2012-13 assisted with the development of a clearer conceptualization of Aboriginal title that will serve to hone Aboriginal law and legal policy practices of national relevance moving forward.
The evaluation evidence (document review and iCase data) pointed to the growing need for legal services by AANDC. As seen in Table 3, a total of 23,733 files were opened between 2008-09 and 2012-13 where AANDC was either the primary or the secondary client. Of these, a total of 16,165 files (representing 68% of the total files opened during the evaluation period) had closed by the end of the evaluation period. Total time spent on these files in hours was 1,615,258 [932,170 which were spent on litigation (58%), 652,767 on advisory (40%), and 30,320 on legislative files (2%)). Litigation files demonstrated a 63% growth in the number of opened files by 2012-13 as compared to 2008-09 (total files – advisory, legislative and litigation combined – demonstrated a 32% growth].
| File Type/Status | 2008-09 | 2009-10 | 2010-11 | 2011-12 | 2012-13 | Grand Total |
|---|---|---|---|---|---|---|
| Advisory: Active | 648 | 778 | 872 | 836 | 1,021 | 4,155 |
| Advisory: Closed | 1,005 | 1,123 | 1,163 | 913 | 547 | 4,751 |
| Advisory: Other | 13 | 85 | 49 | 3 | 3 | 153 |
| Advisory: Total | 1,666 | 1,986 | 2,084 | 1,752 | 1,571 | 9,059 |
| Legislative: Active | 5 | 4 | 3 | 7 | 15 | 34 |
| Legislative: Closed | 40 | 31 | 50 | 33 | 28 | 182 |
| Legislative: Total | 45 | 35 | 53 | 40 | 43 | 216 |
| Litigation: Active | 218 | 389 | 563 | 776 | 1,248 | 3,194 |
| Litigation: Closed | 1,903 | 2,399 | 2,251 | 2,450 | 2,229 | 11,232 |
| Litigation: Other | 17 | 14 | 1 | 32 | ||
| Litigation: Total | 2,138 | 2,802 | 2,814 | 3,226 | 3,478 | 14,458 |
| Grand Total | 3,849 | 4,823 | 4,951 | 5,018 | 5,092 | 23,733 |
Source: iCase data
Notes: Table includes files that were opened during a fiscal year within the five-year evaluation period (where AANDC was either the primary or secondary client). CLOSED files refer to files that were closed during a particular fiscal year. ACTIVE files are files that were not closed. Data are based on fiscal year periods. File counts are based on unique 'file numbers'.
The demand for litigation and legal advisory services by AANDC (the primary client of the AAP) has increased substantially since 2000 in response to the dramatic growth in litigation claims by Aboriginal peoples, as well as increasing scope and complexity of Aboriginal law, legal policy and northern development legal issues. Evaluation evidence (document review and stakeholder interviews) pointed to the growing need for legal services in relation to Aboriginal title, Aboriginal rights, duty to consult and accommodate, treaty rights, Métis, self-government, modern treaties, equality, funding, compensation for historic wrongs, railway issues, children’s issues, judicial reviews, class actions, and an increase in commercial development on reserve. Key informants indicated that the Portfolio had been highly relevant, and all thought that the AAP had been responsive to GOC and federal departments/agency needs.
Key informants provided several examples of AAP’s effective response to the demand for legal services over the evaluation period. One example concerned the duty to consult, which impacted AANDC in particular as the lead department on coordinating for the GOC on the duty to consult, as well as on their own regional activities. It was perceived that the legal policy work by AAP had played a significant role in helping clients clarify the Crown’s positive legal obligations to consult with Aboriginal people and accommodate their rights.
In addition to the increased volume of legal work, evidence pointed to an increase in the complexity of legal issues and in the number of high impact files. Key informants identified the increased number of stakeholders involved in certain files as one aspect increasing the complexity of the work. Another example of the increased complexity relates to the emerging work on large resource and commercial development projects (e.g., liquefied natural gas reserves, shopping malls, and leases). The level of legal risk was perceived to be somewhat unchanging relative to previous years, however, there was the perception that the immediacy of risk to government operations had increased somewhat during this timeframe.
AAP documentation revealed existing and projected areas of legal services over the coming years, including the following:
- With reference to the Indian Residential Schools Settlement Agreement (and given the September 19, 2012 deadline to file a claim), over 36,000 Independent Assessment Process applications were received by the Adjudication Secretariat, and based on projections at that time, it was anticipated that the program would not sunset until at least 2016-17. In light of this forecasting, the AAP was tasked with balancing the need for continued legal services to AANDC for the duration of the Indian Residential Schools Settlement Agreement with the plan for ‘sunsetting’ and transitioning its labour force to other areas of legal priority.
- Claims pertaining to Aboriginal children’s experiences outside of Indian Residential Schools filed against the federal government for the loss of cultural identity by Aboriginal children during the 1960s to the 1980s when thousands were taken from their homes and placed into non-Aboriginal homes.
- The Specific Claims Action Plan (funding for which was renewed for 2013-14 to 2017-18), provides for the acceleration of the resolution of specific claims in order to provide justice for First Nation claimants and certainty for government, industry and all Canadians. Specific claims are based on allegations that the Crown has breached a lawful obligation to a First Nation in relation to the provision or administration of land, monies or other assets. Between 2010 and 2012, approximately 33 specific claims were settled at a total value of over $1 billion. In 2013-14, there were approximately 320 specific claims in the federal inventory that were under assessment/in negotiations.
- Together the Federal Framework for Aboriginal Economic Development,Footnote 10 Federal Comprehensive Land Claims Policy,Footnote 11 Treaty and Self-Government Negotiations,Footnote 12 the North,Footnote 13 and Modernizing Legislation represent key federal initiatives underway towards the end of the evaluation period to reduce barriers to Aboriginal economic development and promote opportunities to help Aboriginal peoples participate more fully in the economy and benefit from its growth. In response to national efforts in this regard, AAP’s continued focus is to ensure opportunities are considered in daily legal work for economic development as seen through an Aboriginal law lens.
- Canadian courts continue to be major drivers of Aboriginal policy, implicitly limiting government’s ability to control how issues can be framed and resolved. More and more Aboriginal peoples are seeking substantial improvements in their socio- economic circumstances and increased involvement in law and policy decisions that have a direct bearing on them. As such, there has been a greater push to use alternative fora that are considered quicker and more cost-effective than traditional litigation processes (e.g., administrative tribunals, judicial review applications, regulatory panels, class actions, the Canadian Human Rights Tribunal, and the Specific Claims Tribunal).
- Finally, issues of Aboriginal rights and title (and duty to consult and accommodate) continue to be of major importance.
4.1.2. Alignment with government priorities and Justice’s Strategic Outcomes
AAP documents show that the activities of the AAP were purposely aligned with shifting GOC priorities and the strategic outcomes of Justice over the course of the evaluation period, and suitably calibrated to respond to current and projected demand. For example, in 2012, AAP outlined several strategic directions and related priorities that were somewhat different from those identified in previous years to form a framework for ongoing discussion with AANDC to ensure the continued relevancy of the Portfolio’s work at a sustainable cost, while maintaining core capacity to provide high-quality legal services.
Examination of documents revealed that AAP successfully supported AANDC in managing and implementing the federal government’s Specific Claims Action Plan (i.e., Justice At Last) in terms of the progress to clear the backlog of claims awaiting Justice legal advice by October 2011 and providing forward-looking advice in preparation for start of hearings before the Specific Claims Tribunal in 2011. As another example, AAP supported the Aboriginal agenda as outlined in the Justice Report on Plans and Priorities 2011-12, and in particular it supported the Policy Sector in the design and implementation of the Aboriginal Justice Strategy renewal beyond 2012. In addition, the Portfolio supported GOC’s Aboriginal agenda through high-quality legal advice and services with particular emphasis on improving Aboriginal economic development and managing risks to its strategic outcomes.
Overall, key informants thought that the AAP had responded well to changing GOC priorities during the evaluation period. They believed that the AAP had consistently demonstrated a practical understanding of what assistance was required, and a willingness to share expertise and to work collaboratively with clients to effectively respond to changing GOC priorities. For example, in response to evolving GOC priorities concerning economic development, there was an increased demand for services in connection with commercial development on reserve. There were also focused efforts towards certain areas of priority at different times over the course of the evaluation period, such as increased emphasis on modern litigation (e.g., human rights and SCT and addressing program and policy on modernization). Some key informants described AAP as being a “leader getting in front of changes” and a Portfolio of “profound relevance” towards the fulfillment of broader GOC priorities.
4.1.3. Alignment with federal roles and responsibilities
AAP supports the Minister in fulfilling his duties as Minister of Justice and Attorney General of Canada under the Department of Justice Act and other relevant federal statutes. A review of the literature revealed the need to balance efforts to support natural resource exploration/development with the rights of Aboriginal people and efforts to improve their social/economic outcomes in keeping with the Federal Framework for Aboriginal Economic Development. AAP legal advisory work in relation to First Nations Commercial and Industrial Development Act (FNCIDA) is an example that demonstrates alignment with federal roles and responsibilities. The FNCIDA was established to close the regulatory gap on reserves and help expedite the implementation of commercial and industrial development projects through the establishment of federal regulations.Footnote 14
4.2. Portfolio Design
4.2.1. Organization design
Over the course of the evaluation period, the Portfolio evolved in important ways towards the continued achievement of AAP’s mandate and objectives. For example, several significant changes were implemented during 2009. The first comprehensive national AAP Integrated Human Resources Plan was developed to align AAP operations with AANDC and government priorities and to address pressing HR risks, including the management of sunsetting programs. An AAP-wide Project Management Framework was also implemented to provide oversight of key AAP legal and business priorities consistent with the assessed level of complexity and risk and in line with the legislation, regulations and Treasury Board policy. A shift in organizational focus was implemented to ensure the structure and work of the AAP demonstrated relevance and fully supported the Government’s Aboriginal Agenda in AANDC’s key priority areas. A national collaborative management strategy toward fiscal sustainability and “smart budgeting” with the client was also pioneered. Evidence clearly indicates that progress has been achieved in these areas.
In 2010, strategic direction in the modernization, amalgamation and downsizing of the AAP took place. Proactive measures were taken to set cost containment on human resources to achieve reduction targets. Throughout 2011-12, approaches to realize efficiencies were implemented with the result that Portfolio spending was decreased by $6.9M (8.9%) in comparison to 2010-11. As part of its modernization, the Aboriginal Law and Strategic Policy Section and the Resolution Branch were replaced with the Aboriginal Law Centre. This reorganization reduced the number of staff and costs associated with these HQ functions. The AAP also implemented the departmental Law Practice Model, which limits the staffing of the senior complement and enhances recruitment of LA1 level. The Integrated HR Plan was developed to guide staffing and classification actions and support longer term planning. Moreover, during the year, an AAP-wide Integrated Learning and Professional Development Framework was implemented to ensure strategic investments in training were carried out in a time of limited resources and to build a flexible, responsive workforce in an environment of change. Several consultation efforts took place to enhance understanding and use of the Project Management Framework, with the Law Practice Management group taking a leadership role across the Department with respect to training.
The modernization of the Portfolio also placed greater emphasis on business analytics, which included an examination of capacity, technology, processes and practices to gain insights into emerging areas of risk, complexity and impact, as well as priorities, and to drive business planning. Following the implementation of the new business model, interviewees observed increased requirements regarding standardized tools, benchmarking and blended practices.
In terms of governance structures, the evaluation found differing views. Some key informants and survey respondents identified several processes/mechanisms to be effective in supporting the achievement of AAP’s mandate and overall objectives; specifically, legal advisory practice and other working groups, Cross-Country Calls, and the National Litigation and Law and Policy Committees. On the other hand, a number of key informants observed some redundancy in existing fora (e.g., the Law and Policy Committee and Experts Committee) and only 56% of survey respondents agreed that the governance/organizational structures that were in place for their unit were functioning as intended.
Most (77%) legal counsel from across the Portfolio agreed that roles and responsibilities of their specific unit were clear and appropriate towards the achievement of the mandate and objectives of the Portfolio. Only 34% of legal counsel agreed that roles and responsibilities of the AAP more broadly in the provision of litigation support were clear. Survey respondents identified the ALC as one section of the AAP whose roles and responsibilities were unclear and where they perceived a duplication in the provision of litigation support and management between HQ and regional counsel on similar issues/files. Given that the ALC was a newly formed section at the time of the evaluation, it is likely that this uncertainty was due to the recent changes and a lack of internal communication with respect to ALC’s role.
With a reduction in human resources as part of AAP’s change management plan, overall workload pressures (72%), and lack of availability of resources more specifically (75%), were seen by the majority of survey respondents as negatively influencing the Portfolio’s continued ability to meet clients’ requests for high-quality legal services. Some counsel perceived the limited availability of paralegals and administrative assistants to assist with administrative work, resulted in counsel completing tasks possibly more suited to research assistants and paralegals. Additionally, there was the perception that legal counsel were also expected to become experts in emerging areas of law in absence of any senior counsel/practitioner assistance (e.g., due to the loss of senior expertise), and/or lack of sufficient professional development opportunities. Furthermore, a number of interviewees felt that the budget restrictions on travel, thereby limiting counsel’s ability to engage in face-to-face interactions, were negatively impacting relationships and consequently lengthening negotiations.
Almost half (47%) of survey respondents identified the timeliness of instructions from AANDC (likely addressed by the new client instructions template developed after the data were collected) as also impinging upon the ability to meet clients’ requests for high-quality legal services.
4.2.2. AAP performance monitoring capacity
The AAP undertakes many activities to ensure the effective management and support of a national law practice pertaining to Aboriginal law and northern development legal issues. These activities include ongoing tracking and analysis of trends, cost drivers, risks, and other relevant themes, completion of in-house data analysis, as well as national consultation and coordination and environmental scanning. These efforts assist the AAP in managing, forecasting and resourcing its work, and in providing effective services to client departments. The ALC maintains a national litigation inventory, which provides critical data for trend analysis and forecasting purposes.
Evidence of AAP’s continued and sustained efforts to guide and support ongoing quality improvement and performance measurement over the course of the evaluation is derived from a variety of sources that outline directives and suggestions in relation to each of these areas. The AAP applies various knowledge and practice management tools and products to ensure the provision of high-quality legal services, including the national litigation inventory; a ‘collaboration’ online tool accessible by both AANDC and AAP to track requests and deliver opinions; application of legal risk management principles and approaches to legal advisory services. Other tools, such as Justipedia (an online research and precedent database launched in 2012), are also used to assist with the management and coordination of the Aboriginal law practice.
While iCase was mentioned by a few legal counsel as a system that offered a variety of timekeeping, billing, case management, document management, and case reporting functions in support of a meaningful quantitative performance analysis, participants indicated problems with the iCase tracking system, and the quality of information being stored in the system between 2008-09 and 2012-13. Specific problems included lack of consistency in data entry, and the type of information being stored therein, which carries important implications in terms of effective performance measurement. Though it is beyond the scope of the current evaluation, it is important to note that the Department is implementing a new protocol to standardize data entry in iCase across the Department in 2015-16.
In managing the national law practice, the AAP engages with partners and stakeholders through various information-sharing and coordination mechanisms, such as inter-departmental committees and meetings (e.g., the Strategic Intake Committee for litigation). AAP counsel and managers participate in a number of AANDC Committees where legal advice and legal policy advice are requested and/or considered. Managing the national law practice also involves providing training opportunities and information sharing to develop knowledge and understanding within Justice, AANDC and other client departments, where Aboriginal law and northern development legal issues frequently emerge.
4.3. Performance: Achievement of Expected Outcomes (Effectiveness)
According to the 2009 Treasury Board Policy on Evaluation, evaluating performance involves assessing effectiveness, as well as efficiency and economy. The subsections below discuss the effectiveness of the Aboriginal Affairs Portfolio – in other words, the extent to which the Portfolio is achieving its expected outcomes.
4.3.1. Quality of AAP legal services
AAP legal services are guided by the Departmental Service Standards. These standards demonstrate the Department’s commitment to delivering high-quality (i.e., timely, responsive and useful) services to government departments and agencies. The evaluation found a high level of satisfaction with the overall quality, responsiveness and usefulness – indicating that the AAP is upholding this multifaceted departmental commitment to the provision of high-quality legal services.
Satisfaction with the quality of AAP services is confirmed by multiple lines of evidence. Most key informants agreed that the AAP had produced high-quality legal services related to Aboriginal law, legal policy and northern development legal issues during the evaluation period regardless of organization changes and cost-cutting measures. AAP’s ability to provide timely and high-quality legal services was largely supported by the subject matter expertise it housed. Clients believed that AAP housed expert lawyers who were highly responsive and provided high-quality legal services throughout the duration of the evaluation period (e.g., they felt negotiations and complex tribunal files were going well). Overall, case study participants (both AAP and client representatives) felt services were well coordinated, (by way of effective consultation practices and working relationships, for instance). From the client’s perspective, AAP services were useful (e.g., in terms of formulating briefing notes, generating documentation describing processes, informing decisions) and appropriate to client’s policy and program objectives. These services were not only accurate in law, but also able to predict court outcomes. Over the evaluation period, some interviewees perceived that the AAP had become more practical in the delivery of its legal service. An example given to demonstrate AAP’s strong performance was with respect to the SCT work, in which over 500 files were cleared between 2008 and 2011, which was considered to be a “monumental effort and success.”
A few challenges were identified by interviewees, including the loss of a core group of senior practitioners through retirement. Examination of data emerging from open-ended survey questions revealed that lack of access to specific information (e.g., specialized libraries for research purposes, specific online articles, up-to-date legal opinions and risk assessments) and/or absence of specific information (e.g., legal positions such as draft pleadings, sovereignty and Aboriginal title, case theories or other resources) was perceived by certain legal counsel to have impeded their ability to provide high-quality legal services related to Aboriginal law and northern development issues at one or more times over the evaluation period under study.
Several documents that were reviewed suggest that the AAP produced high-quality legal services related to Aboriginal law, legal policy and northern development legal issues, including results from the Department of Justice Canada’s 2011 Client Feedback Survey (AAP). Accessibility/ responsiveness of legal services were rated 8.3 out of 10, exceeding the departmental target of 8 out of 10; timeliness of legal services, legal risk management and usefulness of legal services were each rated 7.8 out of 10.
Successful outcomes in litigation files can be viewed as an indicator of effective legal service provision, and the Department has used this measure for departmental performance reporting. Successful outcomes can be achieved through settlement or adjudication. Results are recorded in iCase as successful (a complete win for the government’s position), unsuccessful (a complete loss), or partially successful. As shown in Table 4, iCase data showed that most (86%) litigation files closed during the evaluation period achieved Crown success.
| Crown Results | 2008-2009 (n=3,773) |
2009-2010 (n=1,749) |
2010-2011 (n=2,590) |
2011-2012 (n=2,137) |
2012-2013 (n=2,491) |
Grand Total (n=12,740) |
|---|---|---|---|---|---|---|
| Successful | 96% | 82% | 74% | 79% | 91% | 86% |
| Partially Successful | 2% | 8% | 13% | 13% | 8% | 8% |
| Unsuccessful | 2% | 10% | 13% | 8% | 1% | 6% |
| Total | 100% | 100% | 100% | 100% | 100% | 100% |
Source: iCase data
The file review revealed that AAP advisory and litigation services covered a broad range of issues related to Aboriginal law, legal policy and northern development, including Aboriginal and treaty rights, specific claims, Aboriginal rights and title, consultation and accommodation, treaty land entitlement, and fiduciary duty. The review also revealed that these services were of significant consequence to Canada in that emerging issues carried with them potential client impacts, including impacts on relationships across governments, legislation, precedents, and fiscal resources.
4.3.2. Capacity to Deliver Legal Services in an integrated, consistent and responsive manner
The evaluation found evidence that participation on client committees, working groups or practice groups and interdepartmental committees helped to ensure the integrated delivery of legal services and that legal counsel were speaking with one voice. Towards the end of the evaluation period, several initiatives were underway towards the further attainment of integrated, consistent and responsive legal services. Examples of such initiatives underway during 2012-13 are provided in Table 5 below.
| Benchmarks/Performance Targets (risk, complexity, impact) | Development of benchmarks for litigation (effort commensurate with risk, impact, complexity) |
|---|---|
| Settlement Agreement and Annotated Template | Template to be reviewed and completed |
| Out-of-court Settlement – Legal and Policy Framework | Guidelines relating to the authority to settle and authority to pay (includes reference to TB Policy on Claims and Ex Gratia Payments). Legal opinion and position relating to exploratory discussions, negotiations and bad faith negotiations |
| Updating iCase Business Standards | Review and update of iCase Business Standards to meet the needs of the AAP in terms of reporting on inventory, activity, trends, effort etc. |
| One file/one matter | Consolidation throughout Justice of litigation files to a single litigation file per matter. |
Overall, key informants felt that the AAP had become more practical in the delivery of its legal services over the evaluation period, maintaining a synthesized view of what legal issues might arise in the future and what advice to provide to clients. AAP staff consciously strived to “speak with one voice”, and provide integrated, consistent services to clients. While some counsel noted that at times the number of counsel involved in complex issues could pose as a barrier in developing an opinion, others thought there could be more integration across regional offices and with other Portfolio units.
Most legal counsel (60%) felt they received training that was relevant to their practice area, and slightly more than one-half of legal counsel (55%) felt that the training they received promoted the further development of their legal practice skills. Still, less than one-half of legal counsel (45%) believed they received sufficient training from mentors, and training that built their leadership and management skills in particular (28%).
A review of the AAP documentation revealed that over the evaluation period, several working groups, training and professional development activities had transpired, and products developed, to increase capacity to deliver legal services in an integrated, consistent and responsive manner. For example, the implementation of improved information management measures served to ensure knowledge transfer and access to materials, such as opinions. These measures included access and use of electronic tools. The Portfolio also reviewed different processes to identify ways to expedite the files.
With regard to current tools, resources and processes, a little more than one-half of legal counsel (55%) believed they contributed to the development of consistent and integrated legal advice, and 47% perceived they contributed to the development of consistent and integrated legal positions in litigation files. Less than one-third of legal counsel (31%) felt current tools, resources and processes had contributed to the development of consistent and integrated legal policy.
However, the majority (74%) of legal counsel did find existing electronic tools useful. Fewer (55%) found Deskbooks useful, a finding which might be explained by comments made by legal counsel regarding the absence of specific Deskbooks to assist with the provision of legal services, including Federal Real Property and Federal Immovables Act Rules for Federal and Superior Courts and Aboriginal Advisory Deskbooks.
Qualitative data in connection with open-ended survey questions revealed that several issues might also have affected legal counsel’s capacity to deliver high-quality legal services, including the following:
- Lack of timely and full remote access to tools and resources;
- lack of software/program compatibility;
- limitations associated with both Justipedia and iCase (e.g., lack of user-friendliness, the need for greater oversight regarding information/data being entered into the systems, lack of real-time updates); and
- challenges as a result of the centralization of IT services across government meant that sometimes services were not as responsive to AAP needs as compared to when IT services were being provided within the Department.
4.3.3. Awareness and understanding within the federal government of issues, options, approaches to Aboriginal law, Aboriginal legal policy and northern development legal issues
The evaluation found that the AAP has been successful at increasing awareness and understanding of nuanced legal issues, innovative options and approaches to Aboriginal law, Aboriginal legal policy and northern development legal issues and is continually relied upon as the expert source of legal advice across a broad spectrum of legal issues. Many examples were provided by key informants on how the Portfolio had contributed to this enhanced awareness and understanding, such as understanding Supreme Court of Canada and policy decisions. Counsel from other areas of the Department noted that AAP helped them to understand how a particular piece of litigation fit into the litigation landscape.
AAP Management/Senior Counsel believed the AAP had contributed in important ways to innovation and the enhanced awareness and understanding within the federal government of issues, options, and approaches to Aboriginal law, legal policy, and northern development legal issues. Several notable examples of this were provided, including the following:
- Indian Residential School Settlement Agreement;
- Duty to consult (e.g., “AAP responded immediately by creating a unit devoted to legal policy development in this area”);
- Section 35 of the Constitution Act, 1982 and claims to Aboriginal title;
- Specific Claims Tribunal; and
- Modern treaties/treaty policy development in the negotiation of historical treaties.
Case law was perceived by this group as having evolved during the evaluation period as a direct impact of the work of the AAP.
Clients felt that the Portfolio had contributed in important ways to the enhanced awareness and understanding of Aboriginal law, legal policy, and northern development legal issues horizontally across the government (e.g., “AAP has helped shape the government’s legal positions incrementally, affecting overall law”). Members of this group noted that they regularly received useful information from AAP on opinions arising from litigation decisions/interpretation of litigation decisions/positions and felt the Portfolio was contributing to their enhanced awareness and understanding with reference to the following: “advising and presenting the Crown’s arguments before the court”; “participating in the development of agreements/positions”; “illuminating [clients] on the legal landscape”; and “helping [clients] to modify [their] approach so [they] appear before a judge less frequently”.
The file review showed that AAP was contributing in important ways to enhanced awareness and understanding of the nuanced matters, innovative options, and approaches to various Aboriginal law, legal policy and northern development legal issues, such as duty to consult in relation to comprehensive funding arrangements, breach of treaty and fiduciary duty with respect to surrender, and applicability of the Specific Claims Process.
Important areas of enhanced awareness and understanding that were identified by clients pertained to legal issues and implications and potential risk that would inform business decisions. Results emerging from the case studies revealed that AAP invested important time in consultation activities to ensure clients were aware of different points of view, of the various issues that needed to be considered prior to making any decision, of roles under legislation, and of how to make arguments clearer and robust. A significant example of the Portfolio’s contribution pertained to the Crown's Constitutional Duty to Consult, which affects all areas of Aboriginal law. Specifically, AAP efforts resulted in the development of a pivotal framework for addressing recurring legal issues in connection with development projects and offered options for managing them. As noted by one case study informant, following the implementation of this framework, related cases against Canada and rate of loss dramatically decreased.
Within the AAP, useful fora/processes that were identified by legal counsel as contributing to enhanced awareness/understanding included access to supervisors/mentors, practice working groups, and access to the AANDC LSU and regional Aboriginal Law Sections. Existing AAP calls and meetings were either not used or applicable to the majority of legal counsel during the evaluation period. Qualitative data associated with open-ended survey questions revealed that a few legal counsel would like to have more training in specialized areas to increase their awareness and understanding of issues, options, approaches to Aboriginal law, legal policy, and northern development legal issues.
4.3.4. Aboriginal law and legal policy issues and northern development legal issues are effectively addressed, litigated and resolved
AAP’s continuous efforts to address, litigate and resolve Aboriginal law and legal policy issues are evidenced by various court cases, prevailing court decisions and key legislation identified in the literature. In relation to consultation and accommodation, for instance, AAP’s work on Beckman v. Little Salmon Carmacks helped to clarify two important issues regarding duty to consult:Footnote 15
- That regulatory processes leading to a decision may be sufficient for meeting duty to consult in the absence of separate engagements with First Nations, on the condition that these processes entail requisite elements of consultation; and
- Regulatory decision-makers must balance the rights of the applicant with any potential impacts on the rights of First nations, with the court being required to acknowledge such decisions provided that they are reasonable.Footnote 16
The AAP was perceived by some interviewees as contributing to Aboriginal law and legal policy issues and claims being effectively addressed, litigated and resolved across government through the provision of specific legal advice on matters of resolution and general policy approaches, duty to consult, how to “go forward in light of certain court decisions”, and by advancing arguments and maintaining consistency of legal opinions. AAP counsel felt that greater consideration and responsiveness to the new judicial culture of out-of-court resolution was required to ensure that the proper steps were being taken to prepare to settle out-of-court.
Clients felt that the AAP was contributing in important ways to the effective consideration, litigation and resolution of Aboriginal law, legal policy, and northern development legal issues across government, and was directly implicated in the successful conclusions that were being generated and negotiations that were taking place around reconciliation principles. AANDC in particular noted that their approach was constantly evolving as a direct function of the advice they were receiving from AAP. Clients stated that they were regularly encouraged to settle disputes when feasible; however, it was generally acknowledged by this group that a huge amount of litigation was not appropriate for resolution outside the court. Nonetheless, clients on the whole were satisfied with the rate of settlement that had been achieved during the evaluation period.
The 2011 Client Feedback Survey provided insights into the extent to which AAP contributed to issues and claims being effectively addressed, litigated and resolved. For example, “Recommended appeal or judicial review, if applicable” was rated 8.3/10 in connection with litigation services; other areas scored below the departmental standard of 8.0, such as “Identified means to prevent and resolve legal disputes at the earliest opportunity”, which was scored 7.3/10 regarding litigation services (see Table 6).
| Legal Advisory Services | Litigation Services | Legislative Drafting Services | |
|---|---|---|---|
| Provided clear and practical guidance | 7.9 (±0.2) | 7.5 (±0.5)Table note * | n/a |
| Developed drafting options appropriate to the policy/program objectives of depts./agencies | n/a | n/a | 8.1 (±0.8)Table note * |
| Proposed appropriate solutions for legal and drafting issues raised | n/a | n/a | 8.1 (±0.8)Table note * |
| Involved Departments/Agencies in the development of legal strategy and positions | 7.5 (±0.2) | 7.3 (±0.5)Table note * | n/a |
| Identified means to prevent and resolve legal disputes at the earliest opportunity | 7.7 (±0.2) | 7.3 (±0.5)Table note * | n/a |
| Identified opportunities to implement policies and programs by administrative rather than legislative or regulatory means | n/a | n/a | 7.4 (±1.0)Table note * |
| Consistency of legal services | 8.1 (±0.2) | 7.8 (±0.4) | 8.3 (±0.8)Table note * |
| Identified opportunities to use dispute resolution practices, where appropriate | 7.4 (±0.3) | 7.1 (±0.5)Table note * | n/a |
| Understanding of the nature of the issue for which assistance was sought | 8.5 (±0.1) | 7.8 (±0.4) | 8.2 (±0.7)Table note * |
| Recommended appeal or judicial review, if applicable | n/a | 8.3 (±0.5)Table note * | n/a |
* Caution is recommended in interpreting results that have a calculated margin of error greater than ±0.4
The same survey indicated positive responses across legal advisory, litigation and legislative drafting services concerning whether the AAP had advised the client on issues/development which may impact their department/agency, worked with the client to identify legal risks, and involved the client in the review/development of legal options to mitigate identified legal risks.
While 57% of the Legal Counsel Survey respondents who indicated that they typically worked on litigation files or files requiring litigation support reported barriers to using DR to try to resolve AAP litigation files, the use of DR increased over the evaluation period. Overall, across the five-year evaluation period, an equal percentage of the files were adjudicated and settled. Table 7 shows that the vast majority of cases that were settled out of court involved attempts at DR, particularly closed litigation files classified as medium risk during 2012-13.
| Final Outcome | 2008-09 | 2009-10 | 2010-11 | 2011-12 | 2012-13 |
|---|---|---|---|---|---|
| Adjudicated Without DR | 0.7% | 1.4% | 0.9% | 2.2% | 1.3% |
| Adjudicated With DR | 0.1% | 0.1% | 0.0% | 0.0% | 0.1% |
| Total Adjudicated | 0.8% | 1.5% | 0.9% | 2.2% | 1.4% |
| Settled Without DR | 0.2% | 0.7% | 0.6% | 0.8% | 0.5% |
| Settled With DR | 0.5% | 0.6% | 0.4% | 0.6% | 0.5% |
| Total Settled | 0.7% | 1.3% | 1.0% | 1.4% | 1.0% |
| Total High | 1.4% | 2.8% | 1.9% | 3.6% | 2.4% |
| Final Outcome | 2008-09 | 2009-10 | 2010-11 | 2011-12 | 2012-13 |
|---|---|---|---|---|---|
| Adjudicated Without DR | 29.1% | 16.5% | 20.6% | 10.9% | 8.8% |
| Adjudicated With DR | 17.8% | 17.3% | 21.3% | 8.5% | 6.3% |
| Total Adjudicated | 46.9% | 33.9% | 41.9% | 19.4% | 15.1% |
| Settled Without DR | 2.6% | 5.1% | 5.2% | 3.2% | 2.4% |
| Settled With DR | 13.6% | 22.1% | 30.3% | 43.5% | 62.6% |
| Total Settled | 16.1% | 27.2% | 35.5% | 46.7% | 65.1% |
| Total Medium | 63.0% | 61.1% | 77.4% | 66.0% | 80.2% |
| Final Outcome | 2008-09 | 2009-10 | 2010-11 | 2011-12 | 2012-13 |
|---|---|---|---|---|---|
| Adjudicated Without DR | 14.0% | 13.2% | 10.8% | 22.5% | 11.3% |
| Adjudicated With DR | 1.6% | 1.9% | 1.9% | 0.7% | 0.4% |
| Total Adjudicated | 15.6% | 15.1% | 12.7% | 23.2% | 11.7% |
| Settled Without DR | 4.1% | 9.7% | 3.7% | 4.5% | 3.6% |
| Settled With DR | 15.8% | 11.3% | 4.5% | 2.6% | 2.1% |
| Total Settled | 19.9% | 21.0% | 8.1% | 7.1% | 5.7% |
| Total Low | 35.5% | 36.1% | 20.8% | 30.3% | 17.3% |
Source: iCase data
Notes: This table shows the percentage of CLOSED (i.e., files that were closed during a particular fiscal year) litigation files by file outcome (adjudicated/settled) and whether DR was used (or not) over the evaluation period, by level of legal risk, to illustrate consistency of the implementation of DR structures/processes over time to support the delivery of legal services in response to client need as a function of legal risk. Policy work is captured under advisory files in iCase.
Table 8 shows that most cases that were settled out of court involved DR, particularly closed litigation files that were classified as low complexity during 2012-13.
| Complexity Level/Final Outcome | 2008-09 | 2009-10 | 2010-11 | 2011-12 | 2012-13 |
|---|---|---|---|---|---|
| Adjudicated Without DR | 0.1% | 0.1% | 0.3% | 0.3% | 0.2% |
| Total Adjudicated | 0.1% | 0.1% | 0.3% | 0.3% | 0.2% |
| Settled Without DR | 0.1% | 0.1% | 0.0% | 0.1% | 0.1% |
| Settled With DR | 0.2% | 0.1% | 0.1% | 0.0% | 0.1% |
| Total Settled | 0.3% | 0.2% | 0.1% | 0.1% | 0.2% |
| Total Mega | 0.4% | 0.3% | 0.4% | 0.5% | 0.4% |
| Complexity Level/Final Outcome | 2008-09 | 2009-10 | 2010-11 | 2011-12 | 2012-13 |
|---|---|---|---|---|---|
| Adjudicated Without DR | 10.3% | 8.0% | 9.6% | 2.1% | 1.2% |
| Adjudicated With DR | 12.5% | 13.2% | 10.4% | 0.8% | 0.1% |
| Total Adjudicated | 22.8% | 21.2% | 20.0% | 2.9% | 1.3% |
| Settled Without DR | 0.9% | 0.8% | 1.0% | 0.6% | 0.5% |
| Settled With DR | 9.5% | 1.5% | 1.1% | 1.4% | 0.9% |
| Total Settled | 10.4% | 2.3% | 2.2% | 2.0% | 1.4% |
| Total High | 33.2% | 23.5% | 22.2% | 4.8% | 2.7% |
| Complexity Level/Final Outcome | 2008-09 | 2009-10 | 2010-11 | 2011-12 | 2012-13 |
|---|---|---|---|---|---|
| Adjudicated Without DR | 32.7% | 11.2% | 10.7% | 15.6% | 9.1% |
| Adjudicated With DR | 8.4% | 5.4% | 11.3% | 7.5% | 6.1% |
| Total Adjudicated | 41.1% | 16.5% | 22.0% | 23.2% | 15.2% |
| Settled Without DR | 5.0% | 9.6% | 3.5% | 3.5% | 2.8% |
| Settled With DR | 8.3% | 6.5% | 4.6% | 6.0% | 9.3% |
| Total Settled | 13.3% | 16.2% | 8.1% | 9.4% | 12.1% |
| Total Medium | 54.4% | 32.7% | 30.1% | 32.6% | 27.3% |
| Complexity Level/Final Outcome | 2008-09 | 2009-10 | 2010-11 | 2011-12 | 2012-13 |
|---|---|---|---|---|---|
| Adjudicated Without DR | 6.3% | 15.0% | 13.2% | 18.1% | 11.4% |
| Adjudicated With DR | 1.0% | 2.5% | 2.4% | 0.9% | 0.7% |
| Total Adjudicated | 7.3% | 17.5% | 15.6% | 19.0% | 12.0% |
| Settled Without DR | 1.9% | 6.2% | 4.8% | 4.8% | 3.5% |
| Settled With DR | 2.8% | 19.8% | 26.9% | 38.4% | 54.0% |
| Total Settled | 4.7% | 26.0% | 31.7% | 43.1% | 57.5% |
| Total Low | 12.0% | 43.5% | 47.3% | 62.1% | 69.6% |
Source: iCase data
Notes: This table shows the number and percentage of CLOSED (i.e., files that were closed during a particular fiscal year) litigation files by file outcome (adjudicated/settled) and whether DR was used (or not) over the evaluation period, by level of legal complexity, to illustrate consistency of the implementation of DR structures/ processes over time to support the delivery of legal services in response to client need as a function of legal complexity.
4.3.5. Legal Risk Management
Legal risk management is “the process of making and carrying out decisions that reduce the frequency and severity of legal problems that prejudice the government’s ability to meet its objectives successfully.”Footnote 17 As such, legal risk management involves a number of different stages and activities, including:
- Identification and assessment of potential legal risks;
- Communication of potential risks to stakeholders, as necessary;
- Mitigation of legal risks to the extent possible by addressing policy and legal issues (such as through changes to practices or policies, or by proposing amendments to legislation and/or regulations); and
- Management of legal risks that have materialized and a reduction of their potential costs (monetary and otherwise).
The legal risk management process also involves reassessment of legal risks, as necessary, as issues develop over time.
Evaluation results indicate that AAP contributed to the ability of government departments and agencies to better manage their legal risks on Aboriginal issues. Most key informants felt that the AAP’s advice contributed to AANDC’s ability to administer their programs in a manner that reduced risks. The Portfolio was perceived as enhancing government’s understanding and management/mitigation of legal risk through informal and formal means, for instance through written briefings, lawyer explanations and information sessions.
A review of AAP documentation revealed concerted efforts to assist government departments and agencies in their ability to better manage their legal risks on Aboriginal issues during the evaluation period. For example, in order to manage the speed and volume of information that is crucial to effective legal risk management, the AAP states that it will optimize project management, case management, knowledge management, and quality assurance tools and systems. Another critical example concerns the Legal Risk Management Renewal pilot, undertaken with the Department’s Law Practice Management Division, which involved a determination of which categories of files could and should be the subject of a risk assessment and to determine how an assessment ought to be carried out. It was recognized that more work is required with respect to the quantification of risk across the Department. Specifically, counsel help clients understand risk upfront with a “legal risk management grid”, which involves assigning a numerical value to risk. As risk can be difficult to quantify, a numerical value may not provide sufficient detail to clients. Given the Legal Risk Management Framework was being piloted during the evaluation period, there were inconsistencies in terms of identifying/ quantifying level of legal risks. The Legal Risk Management Framework was finalized and its use across the Department was made mandatory in 2013 (just after the evaluation period), in April 2013 for litigation files and in September 2013 for advisory and legislative files. It is anticipated that the use of this framework will lead to more consistency not only within AAP but also across the Department.
Overall, clients felt that the Portfolio had done a good job at assisting government departments and agencies in managing legal risks on Aboriginal issues over the course of the evaluation period. Findings emerging from key informant and case study interviews revealed that legal risks were thoroughly and regularly communicated to clients by way of discussions, draft facta with cover notes, briefing and scenario notes, formal legal opinions, legal risk analyses and contingency plans, possible outcomes and probability of those outcomes. As based on informal and formal discussions and engagements concerning legal risk, and the re-articulation of legal risk as required over the life of the file, clients were able to better manage/mitigate legal risks on Aboriginal issues.
Still, it was acknowledged that while AAP assists in the management of legal risk, it is ultimately up to the client to decide how they would like to proceed. In terms of legal risk management, clients believed that the Portfolio did not have a flexible system in place for measuring risk (e.g., sometimes a full legal risk assessment is not required and something short and quick would be more helpful), and that sometimes the current risk assessment tool had not been helpful. Clients perceived that a change in the way the Portfolio assessed legal risk would allow the AANDC LMRB to be more effective at addressing the resolution of litigation cases. Clients also noted that, because of cost reductions, AAP had been hindered in their efforts to provide corporate counsel with warning notes/advice for avoiding risks and obstacles in the future (excepting monumental cases).
4.4. Demonstration of Efficiency and Economy
The Treasury Board 2009 Policy on Evaluation defines efficiency as production of “a greater level of output… with the same level of input or at a lower level of input with the same level of output,” and economy as the achievement of expected results using the minimum amount of resources required. Applying these definitions to AAP, an analysis of efficiency and economy considers the ability of the Portfolio to manage the cost and demand for legal services and the degree to which the legal services provided are cost efficient.
As noted earlier, during the evaluation period the AAP underwent organizational changes including budget and staff reductions. The Portfolio was accountable for an annual budget of approximately $78.8 M, which was distributed nationally (38% to AAP HQ and AANDC LSU, and 62% to regional offices) across three business lines: litigation service, Indian Residential Schools, and legal advisory services. The annual budget covered the salary and operating expenditures of approximately 746 full-time equivalents (FTE) nationally. The budget was reduced in several increments to $65.6M in fiscal year 2012-13, and the staffing level to 612 FTEs nationally. Additionally, the AAP undertook several reviews and other initiatives to enhance its resource utilization efficiencies.
Analysis of iCase data revealed the percentage of time spent by legal counsel on low complexity advisory files and low risk litigation files decreased over time; the percentage of time spent on low complexity litigation files increased, which is likely a result of the increasing number of such files. Of the 16,165 advisory, litigation and legislative files that were opened and closed during the evaluation period, where AANDC was either the primary or the secondary client, average hours per file steadily decreased over time, as shown in Figure 3.
Figure 3: Average Hours per File (2008-09 – 2012-13)
Figure 3: Average Hours per File (2008-09 – 2012-13) - Text equivalent
This figure illustrates the average hours per file by fiscal year. In 2008/09, the average hours per file was 50. In 2009/10, the average hours per files was 43. In 2010/11, the average hours per file was 34. In 2011/12, the average hours per file was 30. Finally, in 2012/13, the average hours per file was 23.
As highlighted in Figure 4, it appears that over the course of the evaluation period, the percentage of time spent by legal counsel on low complexity advisory files declined from 34% of total time in 2008-09 to 18% in 2012-13. Paralegal time on low complexity advisory files also decreased.
Figure 4: Percentage of Total Paralegal and Counsel Hours on ADVISORY Files by Level of Complexity (2008-09 – 2012-13)
Source: iCase data
Figure 4: Percentage of Total Paralegal and Counsel Hours on ADVISORY Files by Level of Complexity (2008-09 – 2012-13) - Text equivalent
This figure illustrates the percentage of total paralegal and counsel hours on advisory files by level of complexity each fiscal year between 2008/09 and 2012/13. In 2008/09, 62% of paralegal hours were spent on low complexity advisory files, 17% on medium complexity advisory files and 21% on high complexity advisory files. The percent of counsel hours in 2008/09 on low complexity advisory files was 34%. Twenty-two percent of counsel hours was spent on medium complexity advisory files and 44% on high complexity advisory files.
In 2009/10 paralegals spent 13% of their hours on low complexity advisory files. Paralegals spent 42% on medium complexity advisory files, 36% on high complexity and 8% on mega complexity advisory files. In the same year, counsel spent 23% on low complexity advisory files, 40% on medium complexity files, 33% on high complexity files and 4% on mega complexity advisory files.
In 2010/11, paralegals spent 17% of their time on low complexity advisory files, 78% on medium complexity files, 4% on high complexity files and 1% on mega complexity advisory files. Counsel spent 25% of their time on low complexity advisory files, 59% on medium complexity advisory files, 9% high complexity files and 7% on mega complexity advisory files.
In 2011/12, paralegals spent 8% of their time on low complexity advisory files, 40% on medium complexity, 6% on high complexity and 46% on mega complexity advisory files. Counsel spent 17% of their time on low complexity advisory files, 33% on medium complexity files, 25% on high complexity files and 25% on mega complexity advisory files.
In 2012/13, paralegals spent 6% of their time on low complexity advisory files, 44% on medium complexity files, and 50% on high complexity advisory files. Counsel spent 18% of their time on low complexity advisory files, 37% on medium complexity files, 44% on high complexity files and 1% on mega complexity advisory files.
As shown in Figure 5, over the course of the evaluation period, the percentage of time spent by legal counsel on low complexity litigation files increased from 13% of total time in 2008-09 to 27% in 2012-13. Paralegal time on low complexity litigation files increased. Increased time on such files by paralegals and counsel is likely in response to the increasing number of closed low complexity litigation files that were observed during the five-year evaluation period (as shown in Table 8 above, there was an increase from 12.0% in 2008-09 to 69.6% in 2012-13).
Figure 5: Percentage of Total Paralegal and Counsel Hours on LITIGATION Files by Level of Complexity (2008-09 – 2012-13)
Source: iCase data
Figure 5: Percentage of Total Paralegal and Counsel Hours on LITIGATION Files by Level of Complexity (2008-09 – 2012-13) - Text equivalent
This figure illustrates the percentage of total paralegal and counsel hours on litigation files by level of complexity each fiscal year between 2008/09 and 2012/13. In 2008/09, 13% of paralegal hours were spent on low complexity litigation files, 36% on medium complexity files, 44% on high complexity files and 7% on mega complexity litigation files. The percent of counsel hours in 2008/09 on low complexity litigation files was 13%. Forty-four percent of counsel hours was spent on medium complexity litigation files, 39% on high complexity files and 4% on mega complexity litigation files.
In 2009/10 paralegals spent 12% of their hours on low complexity litigation files. Paralegals spent 51% on medium complexity litigation files, 27% on high complexity and 10% on mega complexity litigation files. In the same year, counsel spent 25% on low complexity litigation files, 48% on medium complexity files, 20% on high complexity files and 7% on mega complexity litigation files.
In 2010/11, paralegals spent 22% of their time on low complexity litigation files, 31% on medium complexity files, 38% on high complexity files and 10% on mega complexity litigation files. Counsel spent 25% of their time on low complexity litigation files, 32% on medium complexity litigation files, 37% high complexity files and 6% on mega complexity litigation files.
In 2011/12, paralegals spent 17% of their time on low complexity litigation files, 38% on medium complexity, and 45% on high complexity litigation files. Counsel spent 30% of their time on low complexity litigation files, 39% on medium complexity files, 28% on high complexity files and 3% on mega complexity litigation files.
In 2012/13, paralegals spent 18% of their time on low complexity litigation files, 11% on medium complexity files, 35% on high complexity files and 36% on mega complexity litigation files. Counsel spent 27% of their time on low complexity litigation files, 28% on medium complexity files, 21% on high complexity files and 23% on mega complexity litigation files.
Figure 6 shows that the percentage of time spent by legal counsel on low risk litigation files decreased from 39% of total time in 2008-09 to 18% in 2012-13. Paralegal time on low risk litigation files also decreased. These findings seem to align with those presented in Table 7, which showed that over the course of the evaluation period, the number of closed low risk litigation files decreased.
Figure 6: Percentage of Total Paralegal and Counsel Hours on LITIGATION Files by Level of Risk (2008-09 – 2012-13)
Source: iCase data
Figure 6: Percentage of Total Paralegal and Counsel Hours on LITIGATION Files by Level of Risk (2008-09 – 2012-13) - Text equivalent
This figure illustrates the percentage of total paralegal and counsel hours on litigation files by level of risk each fiscal year between 2008/09 and 2012/13. In 2008/09, 39% of paralegal hours were spent on low risk litigation files, 52% on medium risk files, and 9% on high risk litigation files. The percent of counsel hours in 2008/09 on low risk litigation files was 39%. Fifty-one percent of counsel hours was spent on medium risk litigation files, and 10% on high risk litigation files.
In 2009/10 paralegals spent 21% of their hours on low risk litigation files. Paralegals spent 51% on medium risk files, and 27% on high risk litigation files. In the same year, counsel spent 31% of their time on low risk litigation files, 54% on medium risk files, and 15% on high risk litigation files.
In 2010/11, paralegals spent 18% of their time on low risk litigation files, 45% on medium risk files, and 37% on high risk litigation files. Counsel spent 27% of their time on low risk litigation files, 47% on medium risk files, and 27% on high risk litigation files.
In 2011/12, paralegals spent 18% of their time on low risk litigation files, 57% on medium risk, and 25% on high risk litigation files Counsel spent 25% of their time on low risk litigation files, 53% on medium risk files, and 22% on high risk litigation files.
In 2012/13, paralegals spent 10% of their time on low risk litigation files, 21% on medium risk files, and 69% on high risk litigation files. Counsel spent 18% of their time on low risk litigation files, 40% on medium risk files, and 41% on high risk litigation files.
Level of legal counsel was parsed out even further (i.e., paralegal, junior (LA-00, LA-1A/LP1, and LA-2A/LP2) and senior counsel (LA-2B/LP3/LC1, LA-3A/LP4/LC2, LA-3B/LP5/LC3, and LA-3C/LC4).
Tables 9 and 10 show that over the course of the evaluation period, the highest percentage of time spent on litigation files was spent by junior legal counsel (relative to more senior counsel or paralegals) regardless of level of legal complexity or risk.
| 2008-2009 | 2009-2010 | 2010-2011 | 2011-2012 | 2012-2013 | |||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| Paralegal | Junior | Senior | Paralegal | Junior | Senior | Paralegal | Junior | Senior | Paralegal | Junior | Senior | Paralegal | Junior | Senior | |
| Mega | 14% | 75% | 11% | 14% | 70% | 16% | 14% | 72% | 14% | 17% | 66% | 17% | 8% | 70% | 23% |
| High | 8% | 75% | 17% | 15% | 73% | 13% | 15% | 78% | 7% | 13% | 74% | 12% | 14% | 76% | 9% |
| Medium | 15% | 79% | 6% | 7% | 79% | 14% | 12% | 83% | 5% | 10% | 84% | 6% | 11% | 82% | 6% |
| Low | 17% | 63% | 20% | 15% | 58% | 27% | 15% | 63% | 22% | 23% | 47% | 30% | 22% | 44% | 35% |
| 2008-2009 | 2009-2010 | 2010-2011 | 2011-2012 | 2012-2013 | |||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| Paralegal | Junior | Senior | Paralegal | Junior | Senior | Paralegal | Junior | Senior | Paralegal | Junior | Senior | Paralegal | Junior | Senior | |
| High | 15% | 57% | 29% | 24% | 49% | 26% | 19% | 56% | 25% | 21% | 43% | 37% | 26% | 48% | 26% |
| Medium | 17% | 70% | 13% | 14% | 70% | 16% | 14% | 75% | 11% | 19% | 67% | 13% | 10% | 76% | 14% |
| Low | 17% | 73% | 10% | 11% | 79% | 11% | 10% | 78% | 12% | 14% | 72% | 14% | 10% | 70% | 20% |
A priority area that was identified was to ensure that legal resources are aligned to the issues or cases that make the greatest difference to business or government operations and priorities, both in terms of supporting those priorities and helping clients manage their greatest legal risks to corporate objectives. Legal counsel who indicated that they typically worked on litigation files and/or files requiring litigation support indicated that there was an appropriate level (51%) and number (45%) of counsel assigned to litigation files relative to the assessed legal risk and complexity. A greater percentage of legal counsel who typically worked on advisory files indicated that there was an appropriate level (66%) and number (62%) of counsel assigned to advisory files relative to the assessed legal risk and complexity.
One-third of survey respondents perceived a duplication of roles and/or responsibilities in the delivery of legal services. Specifically, they perceived too many layers of management, an overlap of work being conducted by HQ and regional counsel on similar files/issues, and potential duplication among ALC, AANDC LSU and the client (AANDC) in the provision of litigation support and management activities. A common theme emerging from qualitative lines of inquiry throughout the survey and interviews revealed that legal counsel were to some extent constrained by the loss of junior counsel, paralegals and administrative staff, which meant them taking on additional tasks that might be more suitable for others to complete (e.g., research and photocopying).
Many interviewees agreed that the legal services provided by AAP were cost effective relative to the private sector; however, there was a growing concern that too much time was being devoted to trying to improve ‘cost’ efficiency (e.g., “Sometimes a disproportionate amount of time is spent trying to save $100”).
Clients perceived that value for money had been achieved and that AAP resource utilization had been appropriate over the evaluation period. Noticeable efforts had been made by legal advisory and litigation staff over the course of the evaluation period to reduce costs and pair files up with a suitable level of expertise in relation to legal risk, complexity and GOC priorities. Clients also felt that rates were reasonable in return for the high-quality legal services they had received. Still, there was some concern expressed with the billing system, which some clients found difficult to decipher at times.
A review of AAP documents showed that from fiscal year 2011 onward, the Portfolio had engaged in several efforts to ensure its continued capacity to provide national strategic coordination and legal risk management, and to deliver legal services appropriate/sufficient, given existing and future demand for legal services. Notable examples include the Professional Development Integration Plan in 2011, which spoke of the importance of investing in value-added training and development to help ensure service delivery in light of a reduced workforce and to support employees. The development of employment engagement strategies was also noted. A sustainable strategy for the resourcing of legal services was established in a manner that factors in the following:
- Servicing the key priorities identified by the GOC, AANDC, and the Attorney General;
- Helping to achieve AANDC’s responsibility for managing legal risk to its mandate;
- Promoting Justice’s “value-added” in identifying, assessing and providing options for how to address that legal risk; and
- Developing tools and processes for efficient delivery of legal services.
When asked to provide comments regarding factors that contribute to the unit’s ability to provide timely, high quality, and cost effective legal services, legal counsel expressed the need for additional human resources moving forward (e.g., paralegals and assistants), succession planning, and mentorship, training, management and professional development opportunities. In addition, legal counsel expressed the need for greater access to research, information, tools, resources, data, fora and legal counsel colleagues within the AAP and beyond to assist in the delivery of legal services.
Interviewees believed that the AAP remained highly responsive despite the significant loss of personnel. Many felt that the AAP had managed with what it had towards the end of the evaluation period, and that “resources and demand” were suitably in line during this time. Still, in relation to future demand, respondents felt less confident. Interviewees felt that recent decisions in Aboriginal law would lead to a surge in demand, which could strain the current level of resources.
Interviewees noted some challenges in billing other government departments that seem to be related to the fact that different funding models were being used across government departments. It was further noted that the iCase timekeeping system did not match the cost recovery funding model, in that time (i.e., in hours) was logged into iCase for each file and then converted into FTE data, which did not necessarily match the information appearing on a client’s invoice. As noted by one key informant, “It would be nicer if both systems were more integrated to parse out how the invoice related to effort.” This issue may be addressed by the Department’s new 1,400 hour standard, which should help to manage the costs of legal services by meeting any increased demand with the existing workforce.
Clients also noted some challenges with the cost-recovery model and a need for more predictability into annual budgeting. Members of this group suggested multi-year agreements as an alternative to yearly agreements, that a more efficient commercial style billing system be adopted, or perhaps move to a “fee for service as a better way to track money spent”.
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