Business and Regulatory Law Portfolio Evaluation
2. Profile of the Business and Regulatory Law Portfolio
The Department of Justice uses a portfolio structure that organizes its legal work around strategic business linesFootnote 1 and provides integrated legal advisory, litigation, and support for legislative drafting services to its client departments and agencies.
The mandate of the BRLP covers several areas of the law, including those traditionally considered part of business law (e.g., commercial law, intellectual property law, procurement law, contract law, real property law, bankruptcy), as well as the legal areas that support the business lines of its client departments and agencies (e.g., environmental, administrative, aboriginal, transportation, health).
As shown in Figure 1 (below), approximately 90% of the files managed by BRLP legal counsel are associated with advisory or litigation files, with advisory files representing the majority (71%) of the Portfolio’s files. The remaining 10% is essentially split equally between legislative files and general files. The latter category includes activities that are not associated with a specific client. It should be noted that the Portfolio’s advisory and litigation files include litigation supportFootnote 2.
Figure 1: Distribution of Number of Actively Managed Files, 2013-14
Source: iCase
Figure 1 - Text equivalent
Pie chart showing the number of actively managed files by file type in 2013-14.
The pie chart shows that 71% were advisory files, 20% were litigation files, 5% were legislative files and 4% were general files.
As shown in Figure 2 (below), 71% of the Portfolio’s actively managed filesFootnote 3 involve advisory work, which accounts for only half of the hours recorded by counsel. Litigation work represents 31% of the hours while the remaining 20% is split equally between legislative and general files. Although litigation work represents one fifth of the number of files, it accounts for nearly one third of counsel hours.
Figure 2: Distribution of Level of Effort 2013-14
Source: iCase
Figure 2 - Text equivalent
Pie chart showing the level of effort by file type in 2013-14.
The pie chart shows that 51% of hours recorded by counsel were spent on advisory files, 31% on litigation files, 9% on legislative files and 9% on general files.
2.1. Structure
As shown in Figure 3 (below), the Portfolio is headed by the Assistant Deputy Minister (ADM), BRLP and a Deputy ADM who are supported by three special advisors/counsel and the Business Management Office (referred to collectively as the Assistant Deputy Minister’s Office or ADMO). The BRLP provides legal services through 14 DLSUs and the business law and regulatory law sections in the Department’s six regional offices.Footnote 4 The Directors of the business law and regulatory law sections in the regions report directly to their Regional Directors General (RDGs) and, functionally, to the ADM, BRLP. The Portfolio is also responsible for the functional coordination of commercial law in the federal context across Canada through the CLS, which includes the Real Property Law Secretariat and the Intellectual Property and Information Technology (IP/IT) Law Secretariat.
Figure 3: Business and Regulatory Law Portfolio – Organizational Chart
The Assistant Deputy Minister and Deputy Assistant Deputy Minister’s office includes the Business Management Office and Special Advisors/Counsel. The 15 DLSUs (Agriculture and Food Inspection, Atlantic Canada Opportunities Agency, Canadian Heritage, Canada Economic Development for Quebec Regions, Canadian International Development Agency, Competition Bureau, Environment Canada, Fisheries and Oceans Canada, Foreign Affairs, Trade and Development Canada, Health Canada, Employment and Social Development Canada, Industry Canada, Natural Resources Canada, Public Works and Government Services Canada, and Transport Canada) all report to the Assistant Deputy Minister or the Deputy Assistant Deputy Minister. Each of the Department’s six regional offices (Atlantic, Quebec, Ontario, Prairies, British Columbia and Northern) have a business and regulatory law section that provides litigation and legal advisory services to the BRLP’s client departments and agencies in that region. 
Figure 3 - Text equivalent
2.1.1. The Assistant Deputy Minister’s Office
The ADMO provides leadership and strategic and functional direction to the DLSUs, the regions, and the CLS on the law and the management of resources and services to client departments and agencies. In particular, the ADMO provides guidance and support to the DLSUs, regional offices and the CLS on legal matters, common administrative challenges, and other horizontal management issues.
2.1.2. Departmental Legal Services Units
During the evaluation period, 14 DLSUs provided legal services to the Portfolio’s client departments and agencies, as listed in Table 1 below. Each DLSU is co-located with its respective clients principally in the National Capital Region (NCR), although some DLSU counsel are co-located with their client headquarters outside the NCR. DLSU services include the provision of legal advice and opinions; direction and legal advice on policy development; assistance to clients with their development of legislative and regulatory initiatives by working with the Legislative Services Branch (LSB); litigation advice and support; and assistance and advice to Ministers, Deputy Ministers, Agency Heads, senior executives, managers and analysts. Some of the largest federal departments receive their legal services from the BRLP, including Health Canada, Public Works and Government Services Canada and Employment and Social Development Canada.
The DLSUs are also the conduit through which the legal services from the regional offices and the specialized services of Justice (e.g., Civil Litigation, Public Law Sector, and Legislative Services Branch) are made available to federal departments and agencies. The requirement for these specialized legal services is determined on a case-by-case basis.
| Departmental Legal Service Units | Departments/Agencies/Federal Entities Served |
|---|---|
| Agriculture and Food Inspection |
|
| Atlantic Canada Opportunities Agency (located in Moncton, New Brunswick) |
|
| Canada Economic Development for Quebec Regions (located in Montréal, Quebec) |
|
| Canadian Heritage |
|
| Competition Bureau |
|
| Environment Canada |
|
| Fisheries and Oceans Canada |
|
| Foreign Affairs, Trade and Development Canada |
|
| Health Canada |
|
| Employment and Social Development Canada |
|
| Industry Canada |
|
| Natural Resources Canada |
|
| Public Works and Government Services Canada |
|
| Transport Canada |
|
Each DLSU is structured differently based on its size and the needs of its client. When large enough to support a team structure, the DLSUs base the structures in a variety of ways, including the organization, core business lines or initiatives of the client, on substantive legal areas, or on types of legal services (e.g., litigation). For example, the DLSU for Health Canada is based, in part, on the Department’s organizational structure, with a separate litigation coordination section, while the DLSU for Employment and Social Development Canada uses a team structure based on key issue areas for the client (e.g., Skills and Employment Group, Labor Group, Pensions, Social Benefits and Compliance Group, Learning and Enterprise Programs Group, Temporary Foreign Worker and Human Resources Group, Litigation and Appeals Group). Others, like the DLSU for Natural Resources Canada, are organized around areas of substantive legal work (e.g., Corporate, Commercial, and Intellectual Property Team, and the Energy and Regulatory Team). The DLSUs receive administrative and paralegal staff support from their respective client department or agency; the level of administrative and paralegal support provided differs from client to client and is discussed during the development of the Memorandum of Understanding with the Department of Justice.
2.1.3. Regional Offices
The Department has six regional offices — Atlantic, Quebec, Ontario, Prairies, British Columbia and Northern. Each office has a business and regulatory law section that provides litigation and legal advisory services to the BRLP’s client departments and agencies in that region. The BRLP provides funding to the six regional offices for their legal services.
2.1.4. Commercial Law Section
In 2009, the BRLP re-established the CLS to assist the Portfolio ADM, who is responsible for the functional coordination of the practice of commercial law across the Department.The CLS is a specialized headquarters unit serving the Department and is the focal point for functional coordination, advice and strategic direction in commercial law. On a limited number of files, the CLS renders its services on a cost recovery basis. For the purposes of the Section, commercial law is broadly defined to include bankruptcy, commercial, communications, competition, contract, corporate, procurement, intellectual property, technology and real property laws, and business law in general.
The CLS has three main objectives:
- to support the ADM BRLP in the functional coordination of commercial law issues across the Department;
- to provide guidance and assistance to legal counsel within the Department on commercial law matters and their practice of commercial law; and
- to facilitate the preparation of tools, courses and material to assist commercial law practitioners.
The Section includes the following two secretariats:
2.1.5. Real Property Law Secretariat
The Real Property Law Secretariat provides legal assistance on property issues to all Department of Justice counsel within headquarters, the DLSUs and regional offices, in addition to dealing with real property transactions and handling the Letters Patent process for all of Canada (with the exception of Quebec). The Secretariat also operates as the federal Document Depository for the deposit of copies of instruments and acts relating to federal real property and immovable property.
2.1.6. Intellectual Property and Information Technology (IP/IT) Law Secretariat
The IP/IT Law Secretariat is a specialized advisory service on matters of intellectual property and information technology law. It provides expertise and leadership to all Department of Justice counsel on legal issues related to the protection and exploitation of government intellectual property assets, the intellectual property dimensions of the federal government’s presence on the Internet (including on social media), electronic commerce, technology transfer, domain name issues, and information technology law matters. The Secretariat also advises on the allocation of intellectual property rights in government procurement contracts.
2.2. Resources
Table 2 presents the BRLP’s expenditures over the fiscal years 2010-11 to 2013-14. During this period, the Portfolio’s expenditures decreased 2%. This change was due to a 44% decrease in operations and maintenance expenditures.
| 2010-11 | 2011-12 | 2012-13 | 2013-14 | |
|---|---|---|---|---|
| Salary | 98,754,208 | 95,200,783 | 94,816,965 | 98,860,413 |
| O&M | 6,645,027 | 6,387,368 | 4,714,832 | 3,702,862 |
| Total annual expenditures | 105,399,235 | 101,588,151 | 99,531,797 | 103,104,900 |
| Employee Benefit Plan (EBP) | 16,788,215 | 17,136,141 | 16,687,786 | 17,201,712 |
| Total, including EBP | 122,187,450 | 118,724,292 | 116,219,583 | 119,764,986 |
Source: Year-end Financial Situation Reports
Note: Excludes Legislative Services Branch
As of 2013-14 fiscal year end, the BRLP had a total of 785.4 full-time equivalents (FTEs) in the categories shown in Table 3. This includes staff (counsel, paralegals and other) with a reporting relationship to the ADM, BRLP (ADMO, CLS and secretariats, and DLSUs), and staff who provide BRLP legal services in the regional offices.
The sizes of the DLSUs range from 5.1 FTEs (Atlantic Canada Opportunities Agency) to 63.9 FTEs (Health Canada), as indicated in Table 3. Although not noted in the table, the Portfolio also funded 39.3 FTE positions in the Civil Litigation group.
| Work Units | FTEs |
|---|---|
| ADMO | 12.8 |
| Commercial Law Section and Secretariats | 10.1 |
| ADMO, Commercial Law Section and Secretariats sub-total | 22.9 |
| Regions: | |
| Atlantic | 32 |
| Quebec | 91.3 |
| Ontario | 65.5 |
| Prairies | 51.3 |
| British Columbia | 77.6 |
| North | 1.3 |
| Regional Offices sub-total | 319 |
| DLSUs: | |
| Agriculture and Food Inspection | 37.7 |
| Atlantic Canada Opportunities Agency (located in Moncton, New Brunswick) | 5.1 |
| Canada Economic Development for Quebec Regions (located in Montréal, Quebec) | 6.9 |
| Canadian Heritage | 14 |
| Canadian International Development Agency | 7.7 |
| Competition Bureau | 15.8 |
| Employment and Social Development Canada | 57 |
| Environment | 43.5 |
| Fisheries and Oceans Canada | 31.1 |
| Foreign Affairs, Trade and Development Canada | 23.5 |
| Health Canada | 60.1 |
| Industry Canada | 32.9 |
| Natural Resources Canada | 12.2 |
| Public Works and Government Services Canada | 61.8 |
| Transport Canada | 34.2 |
| DLSUs sub-total | 443.5 |
| TOTAL | 785.4 |
Source: BRLP FTE Report, March 31, 2014
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