Central Agencies Portfolio Evaluation

5. Conclusions

This section of the report presents conclusions based on the findings described in the previous sections. The information is structured along the main evaluation issues.

5.1. Relevance

Continued Need for Portfolio Services

The evaluation confirmed the continued need for the Portfolio based on the role it serves within the federal government, the type of expertise it offers, and the ongoing demand for its services. The portfolio structure of the Department continues to serve the needs of its client departments and agencies, as well as the government as a whole. By assigning counsel to clients by portfolio, the Department aligns counsel’s expertise with the legal needs of clients. In addition, the portfolio structure assists with consistency in approach and can facilitate information sharing and collaboration, as appropriate. The overall demand for the CAP’s services, measured by hours spent on actively managed files, has remained fairly steady, albeit with declines in some areas, reflecting the continued need for the CAP’s services.

Alignment with Federal Priorities, and Roles and Responsibilities

The CAP supports and upholds government priorities. There is a close alignment between the Portfolio’s work and federal priorities and commitments as outlined in Speeches from the Throne and Budgets. In particular, the areas of tax policy, efforts to combat terrorism, legislation related to pension plans, and initiatives related to “good governance and sound stewardship to enable efficient and effective services to Canadians”, all require legal service support from the CAP. The evaluation evidence shows that the CAP has responded to its clients’ legal needs, which evolve in order to respond to changes in government priorities.

Alignment with Departmental Strategic Outcomes

Evaluation results also indicate that the CAP supports the Department in meeting its strategic priorities. The Portfolio supports the first strategic outcome of “A fair, relevant and accessible Canadian justice system” through exercising its responsibilities under the Department of Justice Act to ensure that the government acts in accordance with the law. The Portfolio contributes to the Department’s fulfillment of its second strategic outcome ¾ “A federal government that is supported by high-quality legal services” ¾ through its provision of legal advisory, litigation and legislative services to its client departments and agencies.

5.2. Design of the Portfolio

Overall, the evaluation evidence indicates that the CAP structure is appropriate and supports its objective of high-quality legal services, while indicating an area of potential improvement.

Strengths of the Portfolio’s Structure

The ADM holds a unique role as head of the CAP and as ADM of the Finance Canada Law Branch. Consequently, the ADM reports to the deputy ministers of two departments — Justice and Finance.Footnote 45 Almost all CAP counsel consider this dual role to be beneficial, as it gives the ADM a broader perspective that can inform the Portfolio’s work.

The Portfolio also has the appropriate mix of departments and agencies. Two central agencies (Finance and the TB) are in the Portfolio, and the other departments and agencies are natural associates as they either report directly to one of the central agencies’ ministers or have a link based on the subject matter of their work.

The other areas of Justice complement and support the Portfolio’s work, but do not duplicate or overlap its legal services. The Portfolio LSUs seek assistance from the specialized sections of Justice when they need subject matter expertise for novel or complex matters in those legal areas. Within the CAP, while legal issues may overlap among client departments or agencies, the Portfolio takes measures to ensure that there is no duplication of efforts or inconsistency in its legal advice.

Potential Limitation

The only potential limitation identified by the evaluation was the information flow from the Portfolio to counsel in the LSUs. The percentage of CAP respondents who believe that essential information flows effectively from senior management to staff has decreased from 66% in 2008, to 49% in 2011, to 46% in 2014. In interviews, some CAP counsel commented that the annual meeting with the ADM was too infrequent and, as a result, the quality of information sharing was very dependent on the environment in the individual LSU.

5.3. Performance

The analysis of performance covers both the achievement of expected outcomes, and the extent to which outcomes have been achieved in an efficient and effective manner.

5.3.1. Effectiveness

Management of Legal Risk

Multiple lines of evidence indicate that legal risk management is occurring and that clients have a high level of satisfaction with the Portfolio’s work in the identification, assessment and management of the legal risk on files. However, an analysis of data from iCase, along with observations from key informant interviews, indicate that LSU counsel may be experiencing some difficulties in complying with iCase reporting requirements related to risk assessment with respect to its advisory and legislative files. Few files (3% of advisory files and 2% of legislative files) have numeric risk ratings. Most non-litigation files have received a legal risk assessment of “too remote to materialize in the near future”. According to key informants, the reason for this rating is that until action on the legal advice is taken, the legal risk cannot be assessed. Whether the use of “too remote” for almost all advisory and legislative files aligns with the expectations of the Department for the use of the new legal risk management protocol is an issue for the Department to determine.

Provision of High-Quality Legal Services

Evaluation evidence confirms that the CAP provides timely, high-quality services to client departments and agencies. Clients considered counsel to be responsive to their requests and met their deadlines, despite resource pressures. In terms of responsiveness, the one area of potential improvement, based on the client feedback survey, was in providing updates or progress reports, although it should be noted that overall scores for responsiveness were high. Clients also considered the Portfolio to have a good understanding of their legal issues. The expertise of counsel and the stability of personnel were considered key strengths of LSUs and assisted with counsel’s detailed and sophisticated understanding of the clients’ legal issues. The importance of stability of personnel also points to a potential future risk as the PSES results indicate a higher level of uncertainty among CAP counsel about remaining in their position, compared to Justice counsel generally. Related to this concern is the suggestion provided by a few clients that the Portfolio provide more written opinions so that institutional memory is not lost when counsel leave or retire.

CAP counsel believe they have the structures and tools to provide high-quality legal advice, although training is a potential area for improvement. Based on counsel survey results, about one-third of respondents considered the amount of training available and the relevance of training to their work to be fair or poor.

Contribution to Clients’ Program and Policy Development

The evaluation found that the Portfolio LSUs contribute to policy and program development by making their client departments aware of legal risks and their legal options. In addition, the level of counsel engagement and consultation with the client is an important factor in whether clients will consider counsel’s legal advice. In interviews and in the client feedback survey, clients reported that the Portfolio adequately involves clients in the development of legal strategies and positions.

Support of Clients’ Legislative Needs

Most Portfolio LSUs are not directly involved in drafting legislation, other than the Finance – TCD. Instead, most LSUs assist clients by drafting instructions and liaising with the LSB. The evaluation found that clients were satisfied with the Portfolio’s support of their legislative needs.

Effective Resolution of Litigation

Most lines of evidence indicate that the Portfolio appropriately uses DR processes. Mediation is suggested when appropriate and when counsel pursue negotiations on files. CAP counsel noted that it can be difficult to determine whether to use DR on some matters, as counsel cannot conduct a complete risk assessment until more information is available, which is usually later in the case. Based on iCase data, many CAP litigation files are not appropriate for DR, and few cases are settled using DR. Compared to the departmental rate of settlement (23%), the CAP settles few files (15% of regional litigation files and 1% of LSU litigation files). For over half of the Portfolio’s closed LSU litigation files, there was no indication in iCase of whether DR was used; however, it is possible that a large complement of labour and employment litigation may well have been the subject of attempts to settle prior to their assignment to the TBS LSU.

Protection of the Interests of the Crown

The Portfolio protects the interests of the Crown by ensuring consistent legal advice and developing legal strategies using a whole-of-government perspective. The CAP does not have many multi-departmental files. Clients who had experienced multi-departmental files believe that Justice was effective in speaking with one voice and that advice was consistent. The Portfolio and the Department overall have tools and structures to assist with providing consistent advice that takes into account the broader, government-wide perspective, such as the specialized sections and the National Litigation Committee. Clients and counsel also agree that consultations with specialized sections of Justice and with other LSUs occur as appropriate. A few key informants noted that CAP counsel’s communication with regional litigators and other LSUs could be improved, as central agencies sometimes assume they have the final decision on files even when they are not the lead on them. This situation was described as having improved in recent years.

5.3.2. Efficiency and Economy

The Portfolio has implemented process optimization measures to maximize the achievement of its results, while minimizing the use of its resources. The difficulties for the Portfolio are in demonstrating the efficiency gains from these activities.

In particular, the Portfolio has made efforts to screen client requests, in order to ensure they concern legal issues and to prioritize urgent matters; to use iCase to monitor files; to apply project management techniques to files; and to increase the use of paralegals. Some of these efforts are still in their early stages (e.g., use of paralegals), but for others the impacts cannot yet be measured. For example, applying project management by assigning senior counsel to high-complexity files and junior counsel to low-complexity files cannot be demonstrated as few files have a complexity rating (high, medium or low). As a result, it cannot yet be demonstrated whether this type of counsel assignment has resulted in more efficient handling of cases and/or reduced costs to its clients Over the five-year evaluation period, the Portfolio reduced its LP FTEs by 3.8.

The CLEL is intended to create efficiencies for the Department by offering expertise in LEL matters. The CLEL’s development is too recent to demonstrate impacts, but the Portfolio reports indicate early success in reducing time spent on LEL issues by counsel outside the TBS LSU.