Business and Regulatory Law Portfolio Evaluation

4. Key Findings

4.1. Relevance

The evaluation considered the relevance of the BRLP with respect to the continued need for its services given the level of client demand, as well as the Portfolio’s alignment with federal government priorities, departmental strategic outcomes and federal roles and responsibilities.

4.1.1. Continued Need for BRLP Legal Services

The BRLP provides integrated legal advisory, litigation and legislative drafting services. The legal services provided by the BRLP help departments and agencies meet their policy and programming priorities and advance the overall objectives of the government in accordance with relevant legislative and regulatory schemes. There is also a continued need for litigation services as long as there are legal claims and legal proceedings being taken against the Crown, or by the Crown. Similarly, the BRLP’s legal services function is an integral element of the legislative process with departmental legal advisors (DLSU counsel) being one of the main participants in the preparation of government bills. For example, counsel provide clients with legal advice regarding various aspects of proposed legislative measures, prepare and/or review drafting instructions, and continue to play an advisory function as a member of the drafting team working on the legislative initiative. Additionally, there is an ongoing need for BRLP legal advisory services to assist government departments and agencies in ensuring that they are operating within the law, and in such a manner  that they take into consideration, minimize or prevent legal risks that could lead to legal liability. In so doing, government departments and agencies are better able to address the needs of Canadians within the rule of law.

As previously mentioned, some of the largest and most complex federal government departments receive their legal services from the BRLP. The potential risks to federal departments and agencies with regard to operating without the support of BRLP legal services cited by counsel and clients interviewed as part of the evaluation are significant. They include, but are not limited to: reputational harm to the client department or agency and to the Government of Canada as a whole; litigation and potential claims for damages; Charter violations; non-compliance with the legislative framework; and policy and programs that are not appropriately grounded in law or that are inconsistent with the legislative framework.

Demand for BRLP Legal Services – Number of Actively Managed Files

The demand for the BRLP’s legal services provides further evidence of continued need. iCase data indicates that the BRLP managed an average of 30,000 active legal filesFootnote 7 during each of the fiscal years covered by the evaluation. As shown in Figure 4 (below), there was a sharp increase in the total number of actively managed files (10%) in 2010-11. In fact, an increase was seen in all four types of legal files managed by the Portfolio (i.e. advisory, litigation, legislative and general files) that year and was most predominant for legislative files, which increased by 30% (from 1,481 files in 2009-10 to 1,931 files in 2010-11). It is worth noting that there was an equivalent decrease in the number of legislative files the year after. During each of the subsequent three years (2011-12 to 2013-14), the total number of actively managed files steadily decreased, except for the volume of advisory files, which remained more or less constant from 2011-12 to 2012-13.

Figure 4: Total Number of Actively Managed Files, 2009-10 to 2013-14

Figure 4: Total Number of Actively Managed Files, 2009-10 to 2013-14

Figure 4 - Text equivalent

Line graph showing the number of actively managed files between 2009-10 and 2013-14.

In 2009-10, there were 28,642 actively managed files.  This number was 31,464 in 2010-11, 31,154 in 2011-12, 30,157 in 2012-13 and 28,420 in 2013-14.

The downward trend in actively managed files from 2010-11 to 2013-14 is largely attributable to the declining number of litigation files during this time period. From 2009-10 to 2013-14, the volume of litigation files declined by 31%. As illustrated in Figure 5, this trend was particularly notable in 2013-14, when the total volume of litigation files dropped 28% from the year before. This decline was a result of changes to the reporting process in iCase whereby counsel stopped the practice of opening a new file for a different aspect of the same litigation case.

Figure 5: Number of Actively Managed Files by Type of Service, 2009-10 to 2013-14

Figure 5: Number of Actively Managed Files by Type of Service, 2009-10 to 2013-14

Figure 5 - Text equivalent

Line graph showing the number of actively managed files by type of service between 2009-10 and 2013-14.

Number of Actively Managed Files by Type of Service, 2009-10 to 2013-14
Fiscal Year 2009-10 2010-11 2011-12 2012-13 2013-14
Litigation 8,312 8,978 8,678 8,023 5,775
Advisory 17,476 19,080 19,645 19,567 20,129
Legislative 1,481 1,931 1,395 1,274 1,286
General 1,371 1,474 1,435 1,291 1,224
Demand for BRLP Legal Services – Hours Spent on Legal Work

Although the number of actively managed files is one indicator of the demand for legal services, so too is the level of effort or hours spent by counsel on legal work. iCase data indicates that the BRLP recorded an annual average of 1,080,841 hours against its actively managed legal files between 2009-10 and 2013-2014. Figure 6 (below) shows the hours spent on legal services over the evaluation period.

Figure 6: Total Hours of Legal Services, 2009-10 to 2013-14

Figure 6: Total Hours of Legal Services, 2009-10 to 2013-14

Figure 6 - Text equivalent

Line graph showing the time spent on legal services (in hours) from 2009-10 to 2013-14. 

In 2009-10, 1,082,634 hours were spent on legal services. This number was 1,121,877 in 2010-11, 1,109,095 in 2011-12, 1,056,524 in 2012-13 and 1,034,075 in 2013-14.

The time spent on legal services followed the same trend as the number of actively managed files in that there was an increase in hours spent by counsel on legal work in 2010-11. Like the volume of legal files, this was followed by a steady decrease in hours over the three subsequent fiscal years. However, the percentage difference in hours year-over-year was not as remarkable as compared to the number of actively managed files. For example, although the number of files managed by the Portfolio increased by 10% in 2010-11 (from 28,642 files to 31,464 files), hours spent on legal work only increased by 4% (from 1,082,634 hours to 1,121,877 hours) that year. Similarly, even though the volume of actively managed litigation files declined by 31% from 2009-10 to 2013-14 (from 8,312 files to 5,775 files), the hours spent on them only declined by 5% (from 333,410 hours in 2009-10 to 317,247 hours in 2013-14). And, in 2013-14, when the number of litigation files dropped by 28% from the year before (from 8,023 files in 2012-13 to 5,775 files in 2013-14), the time spent on them remained relatively unchanged (from 313,666 hours in 2012-13 to 317,247 hours in 2013-14). In fact, over the evaluation period, the hours spent on each type of legal file (i.e. litigation, advisory and legislative) remained relatively constant as shown in Figure 7 (below).

Figure 7: Total Hours of Legal Services by Type of Service, 2009-10 to 2013-14

Figure 7: Total Hours of Legal Services by Type of Service, 2009-10 to 2013-14

Figure 7 - Text equivalent

Line graph showing the time spent on legal services by type of service from 2009-10 to 2013-14.

Total Hours of Legal Services by Type of Service, 2009-10 to 2013-14
Fiscal Year 2009-10 2010-11 2011-12 2012-13 2013-14
Litigation 333,410 343,005 337,719 313,666 317,247
Advisory 518,810 538,670 546,896 538,305 524,335
Legislative 100,030 102,707 99,831 103,777 95,822
General 130,374 137,401 124,640 100,741 96,569

These findings provide evidence of the ongoing need for BRLP services as the level of effort recorded against actively managed files has remained relatively constant despite the downward trend in actively managed files. Findings from the interviews with BRLP managers confirmed this trend in that respondents (with a few exceptions) were generally of the opinion that the volume of legal work had remained consistently high over the timeframe covered by the evaluation. The level of effort may have remained more or less constant from 2010-11 to 2013-14 even though the volume of files decreased during this time period due to increased file complexity. When asked about changes in the demand for legal services over the past five years, some BRLP managers interviewed indicated that there had been an increase in the number of horizontal files in which cross-cutting issues increase complexity. This was corroborated by the findings from the general client interviewsFootnote 8 in which half of the clients interviewed indicated that the complexity of the files in which they had engaged the services of BRLP had increased over the evaluation period. However, it was not possible to confirm whether the number of higher complexity files had in fact increased due to the limited iCase data available on file complexityFootnote 9.

4.1.2. Alignment with Government of Canada Priorities

The BRLP responds to legal services requests related to the existing and emerging priorities of client departments, which in turn respond to the priorities and policy directions of the federal government. For this reason, the activities of the Portfolio are inherently linked to the priorities of the government.

The Portfolio supports the Government of Canada in some of the most important and high-profile issues and initiatives facing the country. It provides legal support on a broad range of policies, programs and initiatives including, but not limited to, environmental protection, transportation regulatory matters, fisheries management and health protection, international bridges, national food recalls, intellectual property, energy projects, responsible resources development, cultural protection, and international development. Counsel in the Portfolio provide legal advice to clients, help manage legal risk, conduct and support cases in court brought by, or against, the Crown, and assist in the development of regulations and legislation.

The alignment of legal services with government priorities is achieved in particular through annual joint Department of Justice and client departments planning and prioritizing of the provision of legal services and a shared understanding of the impacts on legal risks. In addition, senior departmental officials regularly interact with their colleagues in their client departments and in central agencies. As a result, adjustments are made from time to time to maintain focus on government priorities.

The BRLP’s alignment with federal priorities is demonstrated by comparing Speeches from the Throne with the Portfolio’s activities listed in departmental annual reports and annual business plans. The performance highlights below identify some key files and activities in which the Portfolio was actively engaged in supporting its clients in implementing key government priorities over the evaluation period (2009-10 to 2013-14). For example, BRLP counsel:

4.1.3. Alignment with Federal Roles and Responsibilities

Justice’s legal service activities, including those of the BRLP, are integral to the departmental mandate. Under the Department of Justice Act, the Minister of Justice and Attorney General is responsible for providing legal services to the federal government’s departments and agencies. These services include the provision of legal advice, preparing legal documents, drafting legislation, regulating or conducting litigation, and overseeing all legal mechanisms used to achieve the overall objectives of the government.

In particular, under Section 4 of the Act, the Minister is identified as the legal member of the Queen’s Privy Council responsible for seeing that the administration of public affairs is in accordance with the law. Under Section 5 of the Act, the Attorney General is responsible for advising the heads of government departments on all matters of law and for conducting all litigation for or against any federal department or agency of the Crown in respect of any subject within the authority or jurisdiction of Canada.

Furthermore, 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. The Policy states that certain services are designated as mandatory “when a government-wide interest or consideration prevails over, or coincides with, the interest of individual departments and agencies.”Footnote 10 In the specific case of the Department of Justice Canada, the Policy notes that in the discharging of duties, “the Minister of Justice weighs considerations of both law and government policy”, and that legal services provided by the Department “are centrally controlled in order to assure overall consistency and integrity of approach”.Footnote 11

4.1.4. Alignment with Departmental Strategic Outcomes

Under the Department’s Program Alignment Architecture, the BRLP supports the program activity of “legal services to government” and the second strategic outcome of “a federal government that is supported by high-quality legal services”. The Portfolio’s business priorities reflect this strategic outcome and include:

Evaluation results indicate that the BRLP supports the Department of Justice in meeting its strategic outcome of a federal government that is supported by high-quality legal services. The Portfolio provides legal advisory, litigation and legislative services to federal departments and agencies, and, as will be discussed in detail in the following section of this report, the BRLP’s positive client feedback is indicative of its commitment to delivering high-quality legal services. A detailed description of the Portfolio’s logic model is included in Appendix B.

4.2. Performance – Achievement of Expected Outcomes (Effectiveness)

This subsection explores several dimensions of the actual work performed by the Portfolio over the period covered by the evaluation. It also assesses the quality of the legal services provided by BRLP counsel and the extent to which legal counsel have access to the tools and training they require to effectively deliver their services.

4.2.1. Timely, Responsive and Useful Advisory and Litigation Services

In April 2009, the Department of Justice established a series of service standardsFootnote 12, which are grouped along the broad lines of timeliness, responsiveness and usefulness. Shortly thereafter, the Department launched a series of surveys to gauge the level of client satisfaction against these service standards. The Client Feedback Survey for BRLP occurred in November 2009 and included more than 20 BRLP client departments and agencies. A total of 3,032 clients who had used BRLP legal services in the preceding 12 months completed the survey. Client feedback on the overall quality of advisory, non-criminal litigation, legislative drafting and regulatory drafting services provided by the Portfolio ranged from “positive” (meeting the Department’s performance target of 8.0 on a 10-point scale) to “strong” (surpassing the Department’s performance target of 8.0 on a 10-point scale).

While the results of the Client Feedback Survey demonstrate that the Portfolio delivers high-quality legal services to its clients, the provision of regular and informative progress reports was identified as an area for improvement, particularly in terms of advisory services. This is significant in that half of the hours recorded by BRLP legal counsel is advisory work and client ratings for the provision of regular and informative progress reports for advisory services declined from 2007 when it was rated 7.3 out of 10 to 7.0 out of 10 (opportunity for improvement) in 2009. According to the Department’s Memorandum of Understanding (MOU) template, this aspect of the client service standards means that clients are regularly kept apprised of the status of their requests for legal advisory, litigation and legislative services and files. 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. Taken together, the feedback provided by clients who were interviewed for the evaluation and findings from the Client Feedback Survey suggest that there are opportunities to improve the proactive provision of regular and informative progress reports for advisory services.

To provide effective legal services and help officials achieve their objectives within the framework of the law, counsel must have a thorough understanding of the operations, policies and processes of the client department or agency. Many of the BRLP managers in the DLSUs who were interviewed indicated that being co-located with the client department or agency facilitates close interaction with their clients, which in turn contributes a better understanding among counsel of their clients’ business, needs, priorities, desired outcomes and challenges. This finding is supported by the results of the Client Feedback Survey in which client ratings of BRLP counsel’s understanding of the nature of the issue for which assistance was sought surpassed departmental targets for advisory and litigation services. BRLP managers further noted that this is a significant contributing factor to the high-quality legal services to BRLP clients, in that counsel possess in-depth knowledge of the area of law particular to the client department and its programs and policies, which in turn facilitates the identification of legal issues and risks and results in higher quality legal advice.

Through the Legal Counsel Survey administered as part of the evaluation, counsel were also provided with an opportunity to assess the extent to which they are in a position to deliver legal services that are timely, responsive and useful. The survey findings generally indicate that counsel perceive themselves as delivering high-quality legal services that meet departmental standards although they identified several factors that constrain their ability to do so. These included: an increased volume of administrative related work (e.g. opening and closing files in iCase, legal risk management requirements in iCase, timekeeping, reporting, and filing) that detracts from time that could be spent on strategic legal risk management; a lack of administrative and paralegal support; and less staff.

With regard to the volume of administrative work, the Department has recently introduced changes in timekeeping practices to support the identification of legal services and non-legal services activities performed. These changes are expected to identify opportunities for further dialogue on activities that could be discontinued. Additionally, departmental and Portfolio-specific initiatives are being implemented to help alleviate the lack of paralegal support and mitigate the impact of staff reductions on workload, which are discussed later in the report. Since it is too soon to assess the impact of these changes as part of this evaluation, these will be considered in the next evaluation.

4.2.2. Legal Risk Management

The BRLP is expected to communicate potential legal risks, their implications, and available legal options to its client departments and agencies, which is intended to provide them with the information, advice and support they need to make informed decisions about how to manage legal risk and to achieve their objectives. Although the Portfolio provides legal advice and, for legal issues before the courts, suggests litigation strategies, the ultimate decision on how to proceed rests with client departments and agencies, subject to the Department of Justice Act. Irrespective of whether or not the client follows the advice, it nonetheless allows client departments and agencies to make informed choices on how to manage and mitigate their legal risks. Legal risk is combined and factored in with other risks such as financial, policy and other corporate risks during the client’s decision-making process. Results from the BRLP Client Feedback Survey on performance in relation to legal risk was “positive” overall, meeting the Department’s performance target of 8.0 on a 10-point scale.

Legal risk management is an essential aspect of the work of BRLP counsel who identify the principal sources of legal risk, assess the likelihood of an adverse outcome, and work with the client department or agency to estimate the potential impact of the adverse outcome. Counsel also work with officials in departments and agencies to prevent, mitigate or manage the risks. DLSU managers interviewed as part of the evaluation indicated that being integrated (co-located) with the client department or agency helps counsel play a proactive role in the identification of legal issues and facilitates the early identification of legal risks. For instance, BRLP DLSU Executive Directors sit on senior management committees within the client department or agency. This is not necessarily a formal mechanism for identifying legal risk specifically, though some client departments and agencies have established legal issues or risk management committees with mandates to improve the management of legal risks specifically. However, counsel’s participation on these committees helps them adopt a preventive approach, in that they are better positioned to offer advice in advance about a proposed activity that may pose a significant risk in terms of the client’s exposure to liability.

Interviewees indicated that legal risk management is implicit in the day-to-day work of counsel in that counsel constantly assess legal risks through their advisory work. DLSU counsel indicated that an assessment of legal risks is inherent to the advice they provide to the client and integral to the practice of law. On litigation matters, once litigation has commenced, counsel focus on identifying and assessing the legal risks in the litigation, and proposing options to the client department on how to manage or mitigate the legal risks. Legal risks and options for mitigating them are communicated through written legal opinions and oral briefings to the client. Clients and counsel work as a team to identify risks, and discuss and debate options presented by counsel. Data obtained through the case studies show that counsel consult the client with regard to identifying and assessing legal risk and options to manage it. The evaluation did not find any indication that client departments have expressed concern related to a lack of consultation. Furthermore, client feedback obtained through the BRLP Client Feedback Survey on the extent to which BRLP counsel involve clients in the review and development of legal options to mitigate identified legal risks was positive (or meeting the Department’s performance target) for legal advisory and litigation services.

The Department’s legal risk matrix, the tool used by BRLP counsel to assess legal risks (i.e. the likelihood of an adverse outcome and its potential impact on the federal government) to ensure that the level of risk is accurately determined and communicated to the client in a consistent manner, was not rated favourably by Legal Counsel Survey respondents, 41% of whom indicated that they do not find it useful to their work. This finding is equally reflective of the view of both DLSU and regional counsel. Similarly, respondents to the Legal Counsel Survey cited the legal risk assessment process in iCase as a factor that constrains the BRLP’s ability to provide high-quality legal services, in that they find it to be an added administrative burden that is time-consuming and unnecessary.

4.2.3. Access to appropriate expertise, tools, structures, and resources

The ADMO, DLSUs and regional offices are expected to provide legal counsel with the tools, structures and resources needed to provide high-quality legal servicesFootnote 13. Results from the 2014 PSES indicate that 69%Footnote 14 of BRLP staff feel they have the materials and equipment needed to do their job, which is lower than the Departmental average of 76% and lower than the Public Service average of 78%. Similarly, almost half of the respondents in the BRLP Legal Counsel Survey (48%) indicated that there are other tools or support that would assist them in their work. More administrative support (for non-legal tasks such as filing and formatting documents) and support from paralegalsFootnote 15, an improved JustipediaFootnote 16 that is more reliable, complete and easily searchable, and better information technology (i.e. improved connectivity/more reliable access to the Department of Justice electronic network, ability to share secret documentation electronically with other areas of Justice, improved document and file management) were among the other tools and support commonly cited by respondents that would assist them in their work. Being co-located with the client, the DLSUs use their client department’s IT infrastructure. DLSU counsel reported that the only common IT platform available to them (JusAccess) is slow and connectivity is unreliable.

Although Legal Counsel 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 their work (77%), along with practice groups (74%), which provide an opportunity for legal counsel across the Department to meet on a regular basis to exchange and share knowledge on areas of interest for their practice, and peer review (69%). The Justice library, informal consultation with colleagues, searchable case law databases such as Westlaw, and the shared drive (used to locate relevant past opinions) were also commonly cited by counsel as other tools they have found useful in managing their work.

4.2.4. Training for counsel

The training offered to legal counsel is intended to assist them in doing their job, keep them current on legal issues and trends and address any identified gaps in knowledge or skills, thereby better equipping them to provide high-quality legal services. Results from the 2014 PSES indicate that 70% of BRLP staff felt they get the training they need to do their job, which is higher than the departmental average of 68% and higher than the Public Service average of 63%. A number of professional development activities are available to BRLP counsel. For instance, the Professional Development Directorate provides a wide range of learning activities to all legal counsel working in the Department of Justice and courses are regularly offered by the CLS to legal counsel practicing in commercial law. At the Portfolio level, there is an annual training day, and a portion of the BRLP’s training budget is allocated to full-time language training. As well, DLSUs and regional offices generally hold their own ad hoc learning activities throughout the year.

BRLP Training Day

The BRLP Training Day is a one-day event held every year in the National Capital Region that brings together counsel from across the Portfolio. The agenda for the Training Day varies from year to year. Documentation reviewed as part of the evaluation indicates that past events included updates on the work that had occurred in different DLSUs, discussions of larger departmental initiatives, and presentations by senior clients regarding their perspective on the delivery of legal services by the Portfolio. When asked about their satisfaction with the professional development opportunities available to them, 60% of counsel who responded to the BRLP Legal Counsel Survey indicated that they were satisfied with the BRLP Annual Training Day while 40% indicated that they were either dissatisfied or neutralFootnote 17. Though limited qualitative feedback was provided, respondents expressed a preference for more sessions on substantive legal issues and making the Annual Training Day more accessible to all counsel working on BRLP files, including in the regions (e.g. through webcast). It is worth noting that, in order to increase accessibility, a recording of the last BRLP Training Day in June 2015 was posted on both Justipedia and the Portfolio’s SharePoint site, as were the presentations and materials that were used.

Department of Justice Training

A strong majority (81%) of counsel who completed the Legal Counsel Survey indicated that they are satisfied with the other training offered within the Department of Justice, although interview and survey findings did indicate that more advanced courses should be offered and training should be available to a larger audience, for instance through webcast, videoconference, or recording so counsel can view it at a later date.

External training opportunities

Sixty-one percent of survey respondents were satisfied with the external training available to them. Respondents noted that current budgetary constraints limit the ability of the Portfolio to expand the access to these types of learning activities, and approval processes for external training are seen as burdensome and a disincentive to seeking out these opportunities. They further indicated that it would be beneficial to provide greater access to external learning activities, particularly with regard to legal topics and issues particular to their DLSU, that do not necessarily apply to other DLSUs or Justice sections.

Commercial Law Section training

One of the objectives of the CLS is to ensure that legal counsel practicing in commercial law have access to high-quality and relevant training opportunities. In this respect, the Section organizes an Annual Commercial Law Conference and offers an IP-IT Training Day and a Real Property Law Forum which alternate year to year. Each of these are one-day events that counsel across the Department can attend. Although BRLP counsel were not asked specifically about the training events organized by the CLS as part of the Legal Counsel Survey, internal documentation points to the fact that these sessions are well-attendedFootnote 18 and feedback obtained through post-event questionnaires indicate these sessions are well received by participants whose overall assessments of these training activities are generally very positiveFootnote 19.

4.2.5. Training for client departments and agencies

BRLP counsel offer training on legal issues and risks to client departments and agencies to help increase client awareness of when to consult legal counsel and how to reduce the likelihood of potential litigation. More than half (54%) of respondents to the Legal Counsel Survey indicated that they had provided training to client department/agency staff over the time period covered by the evaluation, with the bulk of the training (78%) dealing with substantive law issues, followed by legal process (35%) and legal risks (22%). During the interviews, BRLP managers and clients provided some examples of the training that legal counsel have provided, which included but were not limited to: the role of the DLSU in supporting the client and when to consult legal services; how to exercise statutory authorities (for example, where the law influences the operations of the client such as training for inspectors on laws that govern their actions); basic training on grants and contributions and contract law; training on new statutes and regulations; legal risk; lessons learned on a particular type of case; training on the Access to Information and Privacy Act; law of evidence; privilege-disclosure; training on Aboriginal law issues for fisheries management; application of the law to regulatory enforcement; intellectual property; trade law, restructuring and insolvency training.

Clients who were interviewed for the evaluation expressed their satisfaction with the training/ information sessions provided by their DLSU and further indicated that these have been very useful, relevant, and tailored to their needs. Interviews with both BRLP managers and clients indicate that although the training may not necessarily deal with legal risk management specifically, it helps clients better manage and mitigate legal risks by providing them with a more sophisticated understanding of where legal risk is triggered.

4.2.6. Consistency of legal advice

Canada’s legal team must “speak with one voice” whereby legal opinions provided by counsel must be consistent and in accordance with the role attributed to the Minister of Justice to actas the official legal advisor of the Government of Canada as a whole. Counsel must work out any differences of legal interpretation to ensure that they provide a consistent legal position on any one point of law to all the departments and agencies they serve and in all their litigation. Although it is appropriate and necessary to have some diversity of opinion, there should be one departmental position with regard to the provision of legal advice.

Interview and case study findings indicate that counsel are generally very conscious of the need to speak with one voice and to reconcile different views on legal advice in order to provide a consistent legal interpretation on a point of law. The evaluation found that differences of opinion on a legal issue are typically resolved through further discussions so that consensus can be achieved, and when consensus cannot be achieved, the issue is brought to senior management.

Files may raise similar legal issues, yet be managed by legal counsel located in different DLSUs or regional offices. When another department is involved, counsel will find out who their counterpart is in the other LSU and they will work together. Similarly, when another counsel is involved in the region, DLSU and regional counsel will work together to ensure consistency in the advice/communication provided to the client department or agency. To ensure consistency in the provision of advice, BRLP counsel also consult with other counsel experienced in issues similar to what is being advised on whether it be with colleagues in the Portfolio or in the Department more generally (e.g. with other Portfolios and specialized sections); participate on practice groups where counsel across the Department share their expertise in a specific area of law; review pertinent directives issued by specialized groups such as the CLS; share legal work products with one another; and review precedential opinions on Justipedia (the departmental legal knowledge-management database) to ensure consistency with any past advice.

Case study findings also indicate that BRLP managers monitor the consistency of advice provided by counsel in their DLSUs through the approval process. Furthermore, in the smaller regional offices, counsel tend to work across Portfolios (for example, the same counsel may work on both AAP and BRLP files) which enables them to identify legal issues that may impact other files in other Portfolios. The regions also have in place regional law and litigation committees that identify and coordinate horizontal legal issues and resolve inconsistencies.

Active monitoring and coordination activities at the Portfolio-wide level also help ensure that legal positions put forward are consistent among files raising similar legal issues that are being managed by different DLSUs or regions. The evaluation found that written and verbal briefings by BRLP regional representatives and DLSU Executive Directors aid the ADMO in identifying larger files raising similar legal issues. The case study and interview findings indicate that the ADMO will occasionally review advice to ensure it is consistent with past advice on the same issue in another major file and/or will put relevant counsel in contact with one another to facilitate the coordination of the advice to ensure that it is consistent.

Case study findings indicate that for more complex horizontal files (for example on major natural resource projects involving multiple clients and areas of law), legal working groups have been established on which counsel from the various departments (DLSUs) involved in the file have participated. The evaluation found that these groups are helpful in terms of providing counsel from the various departments involved on the file with a forum for collaboration and information exchange and as such, aid in the consistency and coordination of advice/communication out to the various clients involved on a file. However, as will be discussed later in the report, case study findings and internal documentation reviewed as part of the evaluation also indicate that these groups can result in redundancies on the file.

In the BRLP Client Feedback Survey, clients were asked to rate their level of satisfaction with the consistency of legal advice provided by counsel. Respondent feedback on the consistency of legal advice was “positive” to “strong”, surpassing departmental targets. Similarly, clients who were interviewed as part of the evaluation also indicated that their department/agency receives consistent legal advice.

4.2.7. Information Exchange and Communication across the Portfolio

With over 800 employees working in the six regions of the Department of Justice and in 14 DLSUs co-located with client departments and agencies, the BRLP is not only the biggest portfolio within the Department, it is also the most decentralized. This makes information exchange and communication between the DLSUs, regional offices and ADMO a vital aspect of operations.

The evaluation found that the Portfolio has a number of mechanisms in place to facilitate information exchange and collaboration among managers. There is regular, ongoing contact with BRLP managers through monthly (at a minimum) bilateral meetings between the Executive Directors of the DLSUs and the ADM or Deputy ADM (as the case may be) on high impact advisory and litigation files. There are also monthly management meetings where the ADM and Deputy ADM share information obtained through the executive meetings they have attended, and an annual retreat, both of which include management within the ADMO, CLS, DLSUs and regional offices. Additionally, there is a Friday weekly call between ADMO and the BRLP DLSU Executive Directors and regional managers where information is exchanged. The BRLP managers interviewed as part of the evaluation spoke highly of the various communication mechanisms in place within the Portfolio and indicated that there is an environment of openness within the Portfolio that begins with the senior leadership, which is seen as very accessible and responsive. They further indicated that these various communication mechanisms not only play a critical role in facilitating the exchange of information, but also provide a forum for fostering strong working relationships with their counterparts in other areas of the Portfolio, increasing their comfort level in reaching out to colleagues when needed because those working relationships have already been established. None of the managers interviewed suggested that these communication mechanisms need to be improved in any way.

The Portfolio also reaches out to all staff through its publication titled “Connexions”, an e-newsletter distributed to all BRLP staff three times a year that is intended to create a sense of identity within the Portfolio. The Portfolio’s newsletter includes articles on recognition awards presented to BRLP counsel in the DLSUs and regional offices, and goings-on within the Portfolio and the Department more generally. Additionally, the Portfolio shares pertinent information with BRLP staff through a SharePoint site and either the ADM or Deputy ADM (as the case may be) visits each of the regional offices annually. BRLP managers interviewed indicated that there is a strong sense of collegiality within the Portfolio, which facilitates communication and collaboration among colleagues.

Although the governance structures and processes in place within the Portfolio are effective in facilitating the exchange of information among managers, interviewees and survey respondents identified the sharing of secret information between different areas of the Portfolio (e.g. between DLSUs and between DLSUs and ADMO) and the lack of a fluid IT interface between Justice Headquarters and the DLSUs as challenges in terms of efficient information sharing within the Portfolio.

4.2.8. Coordination and management of significant legal issues

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 ADMO, as needed. The ADMO’s involvement in high-impact files is not standardized. Rather it is dependent on the profile of each file (e.g. the level of DMO or MO interest in a file, the client’s desire for ADMO involvement). 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 significant legal issues. Interviewees indicated that the ADMO proactively takes a leadership role in coordinating horizontal issues when needed by facilitating inter- and intra-Portfolio collaboration and providing a broader perspective to the work of legal counsel on the file. On files where the ADMO does not take on the coordination role itself, it delegates this function to one of the DLSU Executive Directors whose client is implicated in the file. In this situation, a special advisor from the ADMO assists the lead DLSU with coordination.

There are a number of mechanisms in place within the Portfolio to identify, monitor and report on significant legal issues/files including the DLSU Executive Directors’ bilateral meetings with the ADM or Deputy ADM (as the case may be) and bi-weekly reporting to the ADM and Deputy ADM. These briefings help ensure that significant issues benefit from the additional insight, experience and Portfolio-wide knowledge of the ADMO and help identify horizontal issues and possible implications for other BRLP DLSUs. Additionally, the Portfolio has a regular monthly written reporting process in place for DLSUs to identify and provide updates on high-impact advisory and litigation files for the ADMO, which are also discussed during the bilateral meeting that occurs on a monthly basis (at a minimum) between each DLSU Executive Director and the ADM or Deputy ADM, as the case may be.

Case study findings indicate that legal working groups consisting of the various counsel involved in multi-departmental files had been put in place during the evaluation period. These working groups are nimble and flexible. The distribution of roles and responsibilities shift as files evolve, and depend on the implication of the 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 in that multiple DLSU counsel review the same written advice and products and provide equivalent advice to their clients. The Department’s new Major Project Management Office initiative should serve to remedy these inefficiencies insofar as they relate to major energy projects, by centralizing and consolidating the provision of legal advice for these types of files so that a smaller number of counsel in the new unit advise all client departments.

4.2.9. Government decision making and supporting the implementation of government decisions

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 their department or agency. In fact, client key informants generally indicated that there is a heavy reliance on the advice provided by BRLP counsel among decision-makers in their department/agency. For example, senior level officials in the client department have their DLSU review decision-making documents such as cabinet documents where potential legal implications are involved, all of the Executive Directors in the DLSUs sit on at least one of their client’s executive committees, and some regularly attend briefings of the Minister in the client department/agency. Additionally, documented evidence on the case study files indicated that clients consider the legal advice provided by BRLP counsel to prevent, mitigate and manage legal risk (e.g. incorporating counsel’s comments in documentation with potential legal implications), and to inform the legal strategies they pursue.

Although the advice provided by counsel may not necessarily be followed, it increases the client’s awareness of the risks entailed, which ultimately informs their decision making. Once clients have made their decisions, the role of the BRLP is to support the implementation of those decisions. The support provided by counsel in this regard includes legal opinions and advice on issues related to implementation such as the development of regulations or legislation.

4.2.10. Level of collaboration within the Portfolio

The BRLP’s capacity to provide high-quality legal services is partly a function of how well counsel work together, particularly since many tend to rely on being able to “pick up the phone” and reach out to a colleague when needed (e.g. to coordinate advice when two or more departmental clients are working on the same matter). As an example, the CLS has created an inventory of legal counsel who are experienced in the various areas of commercial law, including commercial transactions, procurement, intellectual property, real property and competition law. Counsel are encouraged to use the inventory in the event that they would like to identify a colleague who can help with a specific question.

Results of the 2014 PSES indicate that the work environment in the BRLP is conducive to this approach in that 94% of BRLP respondents stated that they have positive working relationships with their co-workersFootnote 20. Similarly, the results of the Legal Counsel Survey conducted as part of the evaluation indicate that the culture of collaboration and collegiality among counsel is a key factor contributing to the Portfolio’s ability to provide high-quality legal services.

DLSUs and Regional Offices

The litigation services of the BRLP are provided by Justice litigators who generally work in the regional offices and in the Litigation Branch at Justice Headquarters. While some DLSUs conduct litigation before administrative tribunals and courts, they more often provide support to litigation counsel by assisting the litigator and the client with a litigation case. As DLSU counsel have a depth of understanding and specialized knowledge of their clients’ business, their priorities, desired outcomes, goals and challenges, they bring an important and necessary perspective to a litigation case. The DLSUs are also the conduit through which the legal services from the regions are made available to government departments and agencies. It is in this context that the DLSUs and regional offices often work together. Some regional key informants indicated that the way DLSU counsel see their role in a litigation case tends to vary, with some taking a more active role (e.g. wanting to be involved in the development of legal positions to be taken on matters for court and matters to be submitted to court) than others.

The results of the Legal Counsel Survey seem to indicate that there is room for improvement with regard to clarifying the respective roles and responsibilities of BRLP and regional counsel on shared files. More specifically, 20% of regional counsel indicated that the roles and responsibilities between their regional office and the Portfolio’s DLSUs are not clear, and a further 36% indicated that roles and responsibilities are somewhat clear. DLSU counsel were of a similar view with 7% indicating that roles and responsibilities between their DLSU and the regional offices are not clear and a further 42% indicating that roles and responsibilities between DLSU and regional counsel are somewhat clear.

Although there appears to be some opportunities for clarifying the respective roles and responsibilities of DLSU and regional counsel, it is worth noting that only 10% of regional counsel indicated that the collaboration between the two is ineffective or very ineffective. This number was even smaller among DLSU respondents (2%). This suggests that despite a lack of clarity regarding respective roles and responsibilities, DLSU and regional counsel generally have an effective working relationship, which is consistent with the case study findings. Documentation reviewed as part of the case studies where both regional and DLSU counsel were involved indicates that both parties generally work together on a file-specific basis to clarify their roles and responsibilities and to determine how they will coordinate the services that each provides to the client department. This is particularly the case when there are multiple client contacts who are located in both the NCR and in a region. For instance, counsel on one file produced a document setting out the principles for the working relationship and specified the division of tasks and responsibilities. In other instances, regional and DLSU counsel had put in place a less formalized process whereby they maintained an open line of communication through frequent and regular phone calls and email to discuss the file’s progress and the division of tasks. Although the approach appears to vary somewhat from file to file, taken together, the survey and case study findings suggest that counsel generally seem to proactively delineate their respective roles and responsibilities through the development of a work plan, thereby leading to an effective and efficient working relationship. However, opportunities exist for this delineation to take place more consistently.

Commercial Law Section

The CLS was re-established in 2011 following the approval of proposals contained in the Commercial Law Report submitted to the Deputy Minister. The Commercial Law Report is the product of a series of consultations that were held in Ottawa and across all regions on the practice of commercial law within the Department. It identified the challenges faced by the Department in the practice of commercial law, including lack of leadership and fragmentation in the practice of commercial law, and counsel not knowing whom to consult to get support, information and Justice’s position on commercial law issues. The Section is intended to address these shortcomings by: supporting the ADM BRLP in the functional coordination of commercial law issues across the Department (commercial, real property and IP/IT); providing guidance and assistance to legal counsel within the Department on commercial law questions and issues (commercial, real property and IP/IT); and building capacity by preparing tools, offering courses, circulating material and monitoring trends to assist commercial law practitioners. The CLS did not bill for its services during the five-year timeframe covered by the evaluation.

Requests from clients, that is, counsel practicing commercial law across the Department, are made by telephone and/or email directly to counsel or managers within the CLS. The opinions provided by the CLS take various forms, including oral advice or written advice (i.e. through e-mails or formal opinions). Opinions are written for DLSU counsel or reviewed for the DLSU, which normally maintains the carriage of the files being advised on by the Section. CLS legal opinions are accessible on Justipedia and, at the time of writing, 70 of these were posted on the Department’s precedent database. Internal documentation reviewed as part of the evaluation indicates that the Section’s products are widely consulted by Justice employeesFootnote 21.

When asked about the effectiveness of their collaboration with the CLS, half of regional office and DLSU respondents did not know (20%) or indicated that this was not applicable to their work (31%). Given that commercial law is broad including contract, corporate, procurement, real property, and business law and is widely practiced across the Department, the low number of respondents who had collaborated with the Section is possibly indicative of a lack of understanding within the Portfolio with regard to what the Section does and/or how it can be used. It is worth noting however, that consulting with the Section is not mandatory, which likely limits counsel’s knowledge of and experience with the CLS.

Despite the low number of survey respondents who appear to have collaborated with the Section, the level of demand for the Section’s services does appear to be growing. Internal documentation indicates that requests to CLS have increased significantly over the evaluation period, from 45 in 2011 to 191 in 2014. Of the survey respondents who provided an assessment, three-quarters indicated that the collaboration between their work unit and the CLS is effective and 71% indicated that they find the assistance provided by the CLS’ Real Property Law Secretariat and IP/IT Secretariat useful to their workFootnote 22. 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 to inform the advice they provide to the client.

The provision of guidance and assistance to legal counsel in the Department on commercial law issues and questions is but one aspect of the Section’s mandate; it also produces tools, templates, case summaries and position papers that are widely accessible to all Justice counsel on Justipedia, JUSnet (the Department’s intranet site) and Sharepoint. Each year, the Section pilots a new resource and, over the evaluation period, these have included an Update of Real Property Law Deskbook, a Guidance Document on Legal Issues Related to Transfer Payment Programs, and a Social Media Guide. The CLS has also developed, in Justipedia, a website resource for Justice practitioners seeking information about IP/IT and internet law called IP Net, which is a database of Justice opinions, precedents and links related to IP/IT and internet law. Additionally, CLS counsel co-chair (with DLSU counsel) a number of the Department’s practice groups, including those on Commercial Law, Real Property Law, IP/IT and E-commerce, and maintain an inventory of specialists in commercial law across the Department to ensure that experienced counsel can easily be identified to assist colleagues. As mentioned previously, the CLS organizes commercial law training activities in collaboration with the Department’s Professional Development Division, which have been well attended and well received by participants.

4.2.11. Level of collaboration with other areas of Justice

Specialized Sections

The BRLP’s ability to provide high-quality legal services to its client departments and agencies depends on close cooperation not only between counsel within the Portfolio, but with other areas of the Department. Counsel coordinate and consult with specialized sections (e.g. Public Law Sector) within the Department in order to ensure consistency and accuracy in the advice provided across the federal government. Key informants reported that the key change that has improved access to and therefore collaboration with Justice’s specialized sections on BRLP files is the elimination of fees charged by those sections. They further indicated that clients no longer refuse to seek guidance from those sections with developed expertise solely on budgetary grounds where the risk level and potential impact otherwise warrant engaging those services. The vast majority of interviewees who had worked with the Department’s specialized sections reported being very satisfied with the support provided to them. Similarly, a strong majority (85% to 91%Footnote 23) of respondents to the Legal Counsel Survey indicated that collaboration with the specialized sections (i.e. Public Law Sector, Litigation Branch and Legislative Services Branch) of the Department are effective and that the roles and responsibilities are clear between their work unit and the specialized area. Key informants from the specialized sections who were interviewed also reported that the collaboration between their work unit and the BRLP is generally effective.

Aboriginal Affairs Portfolio

BRLP counsel also consult with other portfolios in the Department, including the Aboriginal Affairs Portfolio. The AAP provides expert legal services and legal policy advice to BRLP counsel in the DLSUs and the regional offices on a wide range of Aboriginal law issues, including Aboriginal rights and title, the Crown’s duty to consult, and treaty rights. BRLP counsel obtain expert advice from the AAP on a file-specific basis. These files tend to be more complex as they not only involve an Aboriginal component but also other legal issues in which the DLSU has expertise.

The evaluation found that counsel in the BRLP’s DLSUs, in the Aboriginal Affairs and Northern Development Canada DLSU and in the Aboriginal Law Centre all provide Aboriginal law-related services, which contributes to a lack of clarity regarding the governance of Aboriginal law in the Department. Taken together, counsel reported that it can be difficult to see who is driving the file in light of these circumstances.

The results of the Legal Counsel Survey appear to indicate that there are opportunities to improve the collaboration and delineation of roles and responsibilities between BRLP and AAP counsel. Survey respondents rated the effectiveness of their collaboration with the AAP less favourably than for the specialized sections, with 67% indicating that the collaboration between their work unit and AAP is effective, and 63% indicating that the delineation of roles and responsibilities is clear or somewhat clear between their work unit and the AAP. The interview and survey findings suggest that there is a lack of structure and clearly defined processes regarding how AAP and BRLP counsel are to work together. Respondents expressed a desire for more clarity with respect to when they must seek advice from AAP, who to consult within AAP and how to engage AAP in order to ensure the successful and efficient involvement of the Portfolio on BRLP files. Internal documentation reviewed as part of the evaluation indicates that the Department is developing a unified approach to Aboriginal law services that will presumably serve to clarify relative accountabilities by consolidating such services for all government departments in the AAP.

4.2.12. BRLP’s Work with the Public Prosecution Service of Canada

Regulatory prosecutorial services are provided to client departments and agencies by the Public Prosecution Service of Canada (PPSC). In terms of the PPSC’s work with the BRLP, many of the prosecutions are of drug offences under the Controlled Drugs and Substances Act and the Food and Drugs Act. However, PPSC also prosecutes offences under non-drug legislation pertinent to the BRLP, including but not limited to: water pollution and over-fishing offences under the Fisheries Act, wildlife offences under statutes such as the Migratory Birds Convention Act, and copyright, labor code and bankruptcy offences.

Communication between BRLP and PPSC counsel generally occurs informally. PPSC counsel rely on BRLP counsel to provide expertise on their client department’s legislation as they have a level of familiarity with the statues and regulations specific to their client department that prosecutors may not generally have. DLSU support in this regard is important for successful prosecutions. Likewise, PPSC counsel provide advice to BRLP DLSU counsel on criminal substantive law and procedure as they relate to investigations and prosecutions (e.g. evidentiary privileges and disclosure). Some PPSC key informants indicated that because client departments generally want to keep legal costs down and PPSC counsel bill government departments for their services to them, DLSU lawyers are at times reluctant to contact PPSC to ask for its advice. This means that potentially helpful legal advice may not be sought due to concerns about costs.

4.3. Performance – Demonstration of Efficiency and Economy

The Treasury Board’s 2009 Policy on Evaluation defines efficiency as the production of “a greater level of output…with the same level of input or, a lower level of input with the same level of output”, and economy as the achievement of expected outcomes using the minimum amount of resources required (Treasury Board of Canada Secretariat, 2009). Applying these definitions to the work of the BRLP, an analysis of its efficiency and economy considers the actions of the Portfolio to manage costs and demand for legal services.

In order to strengthen expenditure management, the government began a cycle of ongoing reviews of existing spending. In 2013-14, the focus of the review was on legal services. This review, hereafter referred to as ‘Legal Services Review’, was aimed at managing the demand for legal services in order to control the growth of spending in this area and ensure these services are fiscally sustainable. As part of Legal Services Review, the Portfolio has been actively engaged in identifying and implementing efficiency measures in the management and delivery of legal services to the government through the Department’s Process OptimizationFootnote 24 initiative. It is within this context that the Portfolio’s economy and efficiency measures are discussed below.

4.3.1. Streamlining the Portfolio’s Structure

During the evaluation period and as part of various expenditure management exercises (i.e. Strategic and Operating Review, Deficit Reduction Action Plan, Legal Services Review), the BRLP streamlined its organizational structure by merging DLSUs serving the same Minister in order to increase efficiencies and achieve cost savings. As a result, the Portfolio now has 14 DLSUs, down from 19 in 2012-13Footnote 25. These mergers resulted in a reduction of six FTE positions and a savings of $565,200.

4.3.2. Reduction in Full-time Equivalents

As indicated earlier in subsection 4.1 (Relevance) of this report, the overall volume of legal services provided by the Portfolio remained relatively constant over the period covered by the evaluation. However, the number of FTEs assigned to the Portfolio decreased during this time. As shown in Table 5 (below), the total number of FTEs assigned to the Portfolio decreased by 7%, from 846.8 FTEs at the end of 2010-11 to 785.4 FTEs in 2013-14. While all sub-components of the Portfolio have seen a reduction in their level of FTEs (except for the CLS which was re-established in 2011 and actively engaged in staffing processes over the evaluation period), the areas most affected have been the ADMO (reduction of 40% in FTEs), followed by the regional offices (reduction of 11%) and the DLSUs (reduction of 7%).

Table 5: Number of FTEs, 2010-11 to 2013-14
  2010-11 2011-12 2012-13 2013-14
ADMO 21.3 15.9 15 12.8
CLS 0.6 8.8 10.1 10.1
DLSUs 465 461.2 454.7 443.5
Subtotal HQ 486.9 485.9 479.8 466.4
Regions 359.9 356.6 326.3 319
Total 846.8 842.5 781 785.4

Source: BRLP FTE Reports

It is worth noting that just over half (52%) of BRLP respondents to the PSES indicated that the quality of work suffers because of having to do the same or more work with fewer resources. Similarly, less staff was frequently cited by respondents to the Legal Counsel Survey as a factor constraining their ability to provide high-quality legal services. Nevertheless, interview findings and internal documentation reviewed as part of the evaluation indicate that ongoing priority-setting exercises are occurring, with DLSUs regularly prioritizing their files, in consultation with the client, in order to target their resources to areas of highest priority. It is anticipated that this prioritization process, along with reductions in service in lower priority areas where legal issues are not involved or legal expertise is not needed, will help mitigate the resource reductions.

4.3.3. Containment of Expenditures

The evaluation found that the Portfolio contained its costs over the evaluation period. From 2010-11 to 2013-14, the BRLP’s expenditures decreased by 2% (from $122,187,450 in 2009-10 to $119,764,986 in 2013-14). This decrease was due to operations and maintenance (down 44%). As shown in Table 6 (below), salary expenditures rose slightly in 2013-14 as compared to 2010-11 even though the number of FTEs decreased during this time period. The increase in salary costs in 2013-14 was due to a new collective agreement which resulted in a series of pay increases for law practitioners. These were paid in 2013-14 and were retroactive to 2011.

Table 6: Year-over-Year Expenditures 2010-11 to 2013-14
  2010-2011 2011-2012 2012-2013 2013-2014
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

4.3.4. Managing Demand

Legal Services Review comprises a number of measures, including ‘managing demand’, which has been a focus within the PortfolioFootnote 26. Internal documentation indicates that, 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 and self-service tools for standard low-risk, low-complexity legal documents (e.g. standard MOUs, grants and contribution agreements) so that clients can assume responsibility for these; establishing one point of contact for new incoming legal requests whereby managers assign counsel for all requests for legal advisory or litigation services, and low complexity matters are screened out by referring the client to an existing template or legal opinion; and meeting with the client to establish priorities. The evaluation also found that counsel make use of relevant past opinions; consult with specialized sections that have an existing network of legal experts and a foundation of legal opinions that can be drawn upon to support their litigation and advisory work; and requests for legal services are triaged in order to assign the right resource mix and ensure efficient and effective use of available resources. This finding is supported by the results of the Legal Counsel Survey in which a strong majority of respondents indicated that most files are assigned to the appropriate level (86%) and number (82%) of counsel given their legal risk and complexity level.

Internal documentation and interview findings indicate that the Portfolio is also taking other measures to maximize results while minimizing the use of resources, such as reducing the number of lawyers on files involving more than two clients, monitoring files exceeding 75 hours, and applying a project management approach to advisory files. However, these initiatives appeared to be at an earlier stage of implementation.

Due to an emphasis on federal fiscal restraint over the evaluation period (e.g. Deficit Reduction Action Plan) and because cost containment with regard to the provision of legal services is a shared responsibility with client departments and agencies, many clients have also taken steps to reduce their demand for legal services. These include: prioritizing their requests for legal services and formalizing the process for making these (e.g. by having senior-level managers review the nature of requests to ensure they are a priority), as well as assuming responsibility for low-risk, low-priority work that does require legal advisory support. Although seemingly more rare, the evaluation also found documented evidence on file during one of the case studies that a client department involved in a significant amount of litigation activity had put in place a ‘Litigation Case Manager’: one of its own employees whose general responsibility was to coordinate large litigation files by maintaining a centralized task list, distributing pertinent updates and information, tracking the file’s progress, organizing weekly meetings between the client, the litigator and DLSU counsel, and coordinating the document production for trial.

On some of the case study files, there was documented evidence of counsel encouraging their clients to have a well-organized file with complete information before sending it to Justice. There were also examples of counsel declining participation in meetings or on committees where no legal issues were involved. However, there was an equivalent amount of documented evidence on file of counsel doing non-legal work for which the client would have otherwise been responsible due to urgency, lack of staff or counsel’s depth of corporate knowledge. Such tasks included front-end information gathering, policy development, project coordination on the program side of a legal file and routine property administrative work. Internal documentation reviewed indicates that with Process Optimization, BRLP managers are meeting with clients to discuss the role of counsel and are making efforts to ensure that counsel are not undertaking tasks that could or should otherwise be done by clients.

4.3.5. Use of Paralegals

The delegation of suitable tasks to non-lawyers allows counsel to focus on work that requires their skills and reduces the cost of legal services. The evaluation found that there is a lack of paralegal support in the Portfolio. More than half of survey respondents (54%) indicated that needed paralegal support was available on less than 50% of their files. It is worth noting that the lack of paralegal support is more pronounced in the DLSUsFootnote 27. Similarly, lack of paralegal support was one of the factors frequently cited by respondents to the Legal Counsel Survey as constraining the Portfolio’s ability to provide high-quality legal services. Together, these findings suggest that there are opportunities to increase the level of paralegal support that is available to counsel in the Portfolio.

Counsel who had used paralegals during the two years preceding the survey indicated that the support they had provided most often was in the area of document production, followed by legal research and redaction of documents for privileges. Internal documentation reviewed as part of the evaluation indicates that the Portfolio is making an effort to increase its reliance on paralegals by assigning tasks to them such as drafting memoranda, pleadings, motions as well as research and opinion work, which were previously assigned to counsel. Additionally, the Department more generally is taking steps to increase the level of paralegal support available to counsel by creating a central pool of paralegals, which will primarily serve those DLSUs (including those in the BRLP) that currently do not have sufficient access to paralegals. However, it is too early to say what effect the latter will have on the level of paralegal support available to the Portfolio.

As not all paralegals were required to time keep in iCase during the period covered by the evaluation, accurate quantitative data on the level of effort of paralegals on advisory and litigation files was not available for the evaluation.

4.3.6. Law Practice Model

During the evaluation period, the Department instituted the Law Practice Model (LPM), whereby low-risk, low-complexity work is to be assigned to more junior counsel as a method to achieve cost savings. The LPM was adopted in 2009 and was to be fully implemented by 2012. Under this initiative, the Department increased its recruitment of junior counsel as more senior counsel retired.

Due to the LPM, the mix of legal counsel assigned to advisory files evolved over the period covered by the evaluation. As shown in Figure 8 (below), there was a reduction in the proportion of hours of work recorded by counsel at the LA-3AFootnote 28 level on advisory files and a corresponding increase in the proportion of work recorded by junior counsel at the LA-1A level. The proportion of work recorded by junior counsel at the LA-1A level was not as significant in 2012-13 and 2013-14, after the LPM was fully implemented and LA-1s were being promoted.

Figure 8: Level of Effort by Classification as a Percent of Total - Advisory Files

Figure 8: Level of Effort by Classification as a Percent of Total - Advisory Files

Figure 8 - Text equivalent

Bar graph showing the level of effort by classification as a percent of the total for advisory files.

Level of Effort by Classification as a Percent of Total - Advisory Files
Fiscal Year 2009-10 2010-11 2011-12 2012-13 2013-14
LA-1A 12% 19% 22% 20% 20%
LA-2A 60% 56% 54% 56% 58%
LA-2B 19% 17% 17% 18% 16%
LA-3A+ 9% 8% 7% 6% 6%

As for the proportion of work assigned to junior versus more senior legal counsel, the trend observed for advisory files also applies to litigation files. As shown in Figure 9 (below), the level of effort of junior counsel at the LA-1A level increased while the level of effort of senior counsel at the LA-3A level decreased.

It is worth noting that, although the LPM has resulted in more work being assigned to junior counsel, some respondents to the Legal Counsel Survey indicated that it has also led to a lack of promotional opportunities for junior lawyers, thereby negatively impacting morale among this group.

Figure 9: Level of Effort by Classification as Percent of Total - Litigation Files

Figure 9: Level of Effort by Classification as Percent of Total - Litigation Files

Figure 9 - Text equivalent

Bar graph showing the level of effort by classification as a percent of the total for litigation files.

Level of Effort by Classification as Percent of Total - Litigation Files
Fiscal Year 2009-10 2010-11 2011-12 2012-13 2013-14
LA-1A 19% 27% 30% 31% 26%
LA-2A 51% 47% 46% 46% 51%
LA-2B 18% 15% 15% 14% 15%
LA-3A+ 12% 11% 9% 8% 9%

The hours spent on legal work by junior counsel have not only increased over the evaluation period, but so too have the hours spent on legal work per FTE, according to iCase data. Although perhaps partly a function of more accurate timekeeping practices (i.e. counsel recording more of their time), iCase data indicates that 1,360 hours were spent on legal work per FTE in 2010-11, which increased to 1,400 hours in 2013-14.