Evaluation of Litigation Services

Executive Summary

Introduction

The Evaluation of Litigation Services was conducted by the Department of Justice Evaluation Branch and covers fiscal years (FY) 2014-2015 to 2018-2019. The evaluation was completed in accordance with the Treasury Board’s Policy on Results (2016). Its main objectives were to:

  • examine the implementation and early progress toward the expected outcomes of the reorganization of litigation services in 2016, and the success of resolving litigation files in the context of a new organizational structure; and
  • consider how the reorganization of the litigation business line has affected other areas of Justice Canada, including the Portfolios and Legal Services Units (LSUs).

Program Description

The Department of Justice Canada (Justice Canada) provides litigation services to federal departments and agencies. Litigation services include a variety of activities that are part of representing the federal government in the resolution of litigious or potentially litigious matters, which includes exploring resolution options, preparing cases for litigation, and representing the federal government before courts and administrative tribunals.

Justice Canada litigation services are primarily provided by staff who are part of the National Litigation Sector (NLS). The NLS became effective on April 1, 2016 and is responsible for the conduct for all litigation involving the Government of Canada or any of its departments or agencies. Justice Canada’s regional offices (Atlantic, Québec, Ontario, Prairies, British Columbia, and Northern), as well as the Civil Litigation Section (CLS) and others groups in the National Capital Region (NCR), and National eDiscovery and Litigation Support Services (NeDLSS) provide litigation services and report directly to the Assistant Deputy Attorney General (ADAG NLS).

Some litigation services are also directly provided by several additional units outside the NLS, mostly by LSUs that are co-located in client departments/agencies. Namely, they consist of a specialized Tax Law Services (TLS) unit in the NCR, the National Security Litigation and Advisory Group (NSLAG) LSU, the Treasury Board Secretariat (TBS) LSU, the Competition Bureau Legal Services (CBLS), the Employment and Social Development Canada (ESDC)/Veterans Affairs Canada LSU, and the Transport Canada (TC) LSU.

Findings

Effectiveness

The creation of the NLS in 2016 was intended to plan, manage, deliver, and oversee litigation services for the government as a whole, and to enable a more consistent and efficient approach with clearer accountability and more flexibility in the use of litigation resources. The evaluation found that, in general, the NLS has been effective in achieving these objectives.

Justice Canada was successful in over 70% of its litigation files concluded during the period covered by the evaluation (defined by the Department as all settled files and adjudicated files with a successful outcome). Justice Canada provides litigation services that meet its established service standards and are of high quality. This is reflected in the client satisfaction ratings related to the responsiveness, usefulness, and timeliness of litigation services and is confirmed by Justice counsel who liaise with clients and litigators. The evaluation also found that the Department is keeping pace with demand, which has required flexibility in responding to the diverse litigation needs of its client departments and agencies.

The NLS has had a positive impact on the management of litigation services. In particular, the NLS structure has facilitated consistency and coherence in the approach to litigation services through the development of frameworks and guidance documents. Reporting requirements on litigation files have been clarified under the NLS structure for regional offices. In addition, the NLS has facilitated collaboration among the areas of Justice Canada that provide direct litigation services (NLS and other litigation units). The Regional Directors General (RDGs) work directly with the ADAG NLS through the Board of Directors (BoD) to manage the litigation work of the Department, and regional litigation committees have been more active in sharing best practices.

While the new structure supports closer relationships among litigation units, including the regional offices, CLS and other litigation units, results suggest that there is less communication and engagement between regional offices and Portfolios/LSUs. The evaluation also found some ambiguity with respect to how and when to directly involve Portfolios and LSUs during the litigation process. Results indicate an ongoing need to facilitate communication and engagement between Portfolios/LSUs and the NLS, and within NLS units, in order to best support client centric strategic partnerships.

Efficiency

In terms of administrative efficiency, the evaluation found that the NLS structure has simplified budgeting and planning processes, by bringing the previous 35 separate budgets for litigation services into one consolidated budget. In addition, the NLS allows for a more flexible approach to staffing litigation files, both within regional offices (staff can more readily work across Portfolios), as well as through cross-regional collaboration to meet service delivery needs. The new structure also facilitates sector-wide initiatives, such as the development of a detailed resource allocation analysis project, the NLS Paralegal Strategy, and the development of standardized tools and processes for personnel selection and management, which contribute to more consistent approaches in NLS management nationally.

In terms of the efficiency in litigation file management, the level of effort (staff time) is appropriately allocated, as higher risk and complexity files (the more high-profile and sensitive cases) receive more attention in terms of staff time. However, the data also indicate that about half of files settle closer to trial. While counsel are using dispute resolution options, there is the potential to consider options to resolve cases in a more cost-effective manner (i.e., pursuing settlement at an earlier stage of the court process).

Recommendations

  1. The NLS, in consultation with other Sectors or Portfolios, should clarify business processes including how and when various groups such as Portfolios (including LSUs), Sectors and client departments should be involved in the litigation process.
  2. The NLS, in consultation with other Sectors and Portfolios, should establish opportunities for networking and information sharing among personnel from NLS, Portfolios (including LSUs) and Sectors, as well as within NLS (e.g., across regions).
  3. The NLS should further explore opportunities to enhance the use of various alternative dispute resolution processes, as well as the possibility of pursuing settlement at earlier stages in the litigation process.
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