Business and Regulatory Law Portfolio Evaluation

Executive Summary

1. Introduction

The Business and Regulatory Law Portfolio (BRLP) is one of six portfolios within the Department of Justice Canada. At the time of the evaluation, the BRLP provided legal advisory and litigation services to 38 client departments, agencies, and federal entities through 14 Departmental Legal Services Units (DLSUs).

This is the first evaluation of the BRLP. The Department of Justice Evaluation Division conducted the evaluation, which focused on the Portfolio’s activities from 2009-10 to 2013-14. An Evaluation Advisory Committee consisting of representatives from Portfolio headquarters and the regional offices provided ongoing input into the evaluation. In accordance with the 2009 Treasury Board Policy on Evaluation, the primary purpose of the evaluation was to assess the core issues of relevance and performance (i.e. effectiveness, efficiency and economy).

2. Evaluation Findings

Relevance

The evaluation found that the BRLP is highly relevant in that it responds to an ongoing need for legal services by government departments and agencies to ensure that they are operating within the law, and in such a manner as to ensure that decisions are well-informed taking into consideration, minimizing or preventing legal risks that could lead to legal liability. Similarly, legal claims and legal proceedings being taken against the Crown, or by the Crown, are part of the reality of operations among government departments and agencies, and as such, litigation services also respond to an ongoing need. Both the case studies and client interviews indicate that the advice provided by BRLP counsel is considered in the legal strategies pursued and decisions made by client departments and agencies. Although the advice provided by counsel may not necessarily be followed, it increases the clients’ awareness of the risks entailed, which ultimately informs their decision making and contributes to overall risk management. iCase data indicates that there has been a high demand for the services provided by the Portfolio, which managed an average of 30,000 active legal files and recorded an average of 1,080,841 hours against these files during each of the fiscal years covered by the evaluation.

The Portfolio’s activities are inherently aligned with federal government priorities, in that the BRLP responds to legal services requests related to the existing and emerging priorities of client departments and agencies, which in turn respond to the priorities and policy directions of the federal government.

The Portfolio’s legal advisory, litigation and legislative services are also well aligned with federal roles and responsibilities. Under the Department of Justice Act, the Minister of Justice and Attorney General are responsible for providing legal services to federal government departments and agencies. Additionally, the centralized model whereby the Department of Justice, with few exceptions, provides legal services to government departments and agencies has been integrated in the Treasury Board of Canada’s Common Services Policy, which identifies Justice Canada as the mandatory provider of legal services for federal departments and agencies.

Performance

With regard to performance, the evaluation considered both effectiveness (i.e. the extent to which the Portfolio has achieved its intended outcomes) and efficiency and economy (i.e. the degree to which appropriate and efficient means are being employed to achieve the desired outcomes).

Effectiveness

Overall, the evaluation found that the Portfolio delivers high-quality legal services that are timely, responsive and useful. Additionally, counsel are generally very conscious of the need to ‘speak with one voice’ and consult widely in order to provide consistent legal advice. However, the provision of regular and informative progress reports was identified as an area for improvement, as clients who are not in regular contact with counsel (e.g. through recurrent meetings) generally mentioned having to seek updates on their requests for legal services. Notwithstanding this limitation, the evaluation findings indicate that clients are generally very satisfied with the legal services they have received from the BRLP.

Although counsel perceive themselves as delivering high-quality legal services that meet departmental standards, they identified several factors that constrain their ability to do so, including: an increased volume of administrative related work (e.g. opening and closing files, legal risk management requirements in iCase, timekeeping, reporting and filing), a lack of administrative and paralegal support, and less staff to do the work. Counsel indicated that other tools or support would assist them in their work including: more administrative support for non-legal tasks and support from paralegals, an improved Justipedia and better information technology. Although survey respondents indicated that they would like to see improvements to Justipedia, it was also frequently cited as one of the most useful tools in managing their work along with practice groups and peer review. Most BRLP counsel are satisfied with the departmental training offered to them, though some expressed a desire for more advanced courses. However, they were less satisfied with the availability of external training, citing difficulties in accessing training due to budgetary constraints and burdensome approval processes.

Being the largest and most decentralized of the Department’s portfolios, information exchange and communication across the BRLP is a vital aspect of operations. The sharing of secret information between different areas of the Portfolio and the lack of a fluid information technology (IT) interface between Justice Headquarters and the DLSUs were frequently identified as challenges in terms of information sharing within the Portfolio, though these are larger departmental issues that are not limited to the BRLP.

The Portfolio’s capacity to provide high quality legal services is partly a function of the level and effectiveness of collaboration among counsel. The evaluation found that collaboration with the specialized sections of Justice generally seems to be occurring successfully, whereas collaboration with the Aboriginal Affairs Portfolio (AAP) does not appear to be quite as effective. Respondents attributed this to the lack of structure around how BRLP and AAP counsel are to work together (e.g. when BRLP counsel must seek advice from AAP, who to consult within AAP and how to engage AAP). There also appears to be a lack of clarity around the respective roles of DLSU and regional counsel when they work together on a litigation file and, although they tend to proactively delineate their respective roles and responsibilities, opportunities exist for this delineation to take place in more situations.

Half of regional and DLSU counsel who were surveyed as part of the evaluation were unable to rate the effectiveness of their collaboration with the Commercial Law Section (CLS). Despite the low number of survey respondents who appear to have collaborated with the Section, internal documentation indicates that the level of demand for the Section’s services has been growing since it was re-established in 2009. Three-quarters of the survey respondents who provided an assessment indicated that the collaboration between their work unit and the CLS is effective. Respondents who rated their collaboration with the CLS less favorably generally indicated that it had been difficult obtaining assistance from the Section, which they attributed to a lack of staff. An equal number of respondents also expressed a desire for more concise, practical and easy to understand advice and products from the Section to inform the advice they provide to the client.

The DLSUs and the regional offices are expected to coordinate and manage significant legal issues (e.g. high impact files, files involving multiple clients) with assistance from the Assistant Deputy Minister’s Office (ADMO), as needed. Although there are no formal structures in place for managing files of this kind, BRLP managers provided positive feedback regarding the ADMO’s involvement in this regard.

Case study findings indicate that legal working groups consisting of various counsel involved in multi-departmental files are nimble and flexible. Roles and responsibilities shift as files evolve, and change with the implications to various client departments and the workload of counsel. Counsel are able to obtain information on varying facets of the file through their participation on the legal working group, thereby enabling them to better advise their clients based on a larger context. However, the evaluation also found some redundancies with this approach (e.g. multiple counsel review written advice and products).

Efficiency and Economy

The Department’s change management initiatives, such as Legal Services Review and Process Optimization, are contributing greatly to a culture of economy and efficiency within the Portfolio. Through these initiatives, the BRLP has been actively engaged in implementing measures such as ‘Managing Demand’ that are aimed at maximizing the achievement of results, while minimizing the use of resources. In order to manage demand, the Portfolio’s DLSUs have been actively involved in screening and prioritizing client requests for legal services, most notably by: developing templates for standard legal documents, meeting with the client to establish priorities and raising awareness of Process Optimization. Although there was documented evidence of counsel declining their involvement in non-legal work (e.g. participating in meetings and on committees and reviewing documents where legal issues were not involved) on some of the case study files reviewed, there were others where clients were relying on counsel to do non-legal work for which they would otherwise be responsible such as front-end information gathering, policy development, and project coordination on the program side of a legal file. Through Process Optimization, efforts are being made to ensure that counsel are not doing tasks that can and should be done by clients.

The BRLP has also streamlined its organizational structure by merging DLSUs serving the same Minister, decreased the number of FTEs in the Portfolio, and contained its salary and operations and management expenditures over the evaluation period. Additionally, the proportion of hours spent by junior counsel on advisory and litigation files increased over the evaluation period, while time spent by senior counsel decreased.