Evaluation of Litigation Services

5. Conclusions And Recommendations

5.1 Conclusions

The results of the evaluation indicate that the litigation services provided by Justice Canada are of high quality, achieve successful outcomes on litigation files, and are well managed.

All lines of evidence demonstrate that Justice Canada provides high-quality litigation services to clients. Client Feedback Survey results reflect overall satisfaction of client departments and agencies with the litigation services received, in particular they are satisfied with litigation services’ responsiveness, usefulness, and timeliness. Other Justice Canada counsel (in LSUs and Portfolios) who are responsible for serving as a liaison with clients and litigators confirm that litigation services provided to clients are generally of high quality.

Furthermore, Justice Canada has consistently exceeded its performance target of 70% of litigation files with successful outcomes during the period covered by the evaluation.

The reorganization of the litigation services and the creation of the NLS has had a generally positive impact on the management of litigation services. Accountability structures for litigation services are clearer, particularly in terms of regional reporting on litigation files. The NLS structure has facilitated greater consistency and coherence in litigation services through initiatives that provide general frameworks and guidance, such as those related to class action proceedings and the Directive on Civil Litigation Involving Indigenous Peoples. Other structures, such as the NLC, continue to make a strong contribution to Justice Canada speaking with one voice on litigation matters.

Collaboration among the areas of Justice Canada that provide direct litigation services is effective. The RDGs work directly with the ADAG NLS through the BoD to manage the litigation work of the Department. Regional litigation committees have been more active in sharing best practices, and the NCR Litigation Committee has served as an effective forum for interaction and collaboration with the CLS and other litigation units in the NCR that are not part of the NLS.

With all staff now falling under the NLS organizational structure rather than under five different Portfolios, regional offices and the CLS have more flexibility in assigning staff to meet service delivery needs both within and across regional offices and the CLS. The new structure facilitates sector-wide initiatives, such as the resource allocation project, the NLS Paralegal Strategy, and the Next Generation Software Project. These initiatives are pursuing more consistent approaches across NLS litigation services.

The NLS structure has reduced administrative burden by bringing the previous 35 separate budgets for litigation services into one consolidated budget, which has simplified budget development as well as assisted with planning.

The NLS is resolving cases in a cost-effective manner as higher risk and complexity files receive more attention in terms of staff time. However, the data indicate that for these files, settled files require a greater level of effort to resolve than adjudicated files. About half of settled files are settled after discovery (i.e., closer to trial). It may be worthwhile for Justice to explore opportunities to settle files at an earlier stage of litigation or through other alternative dispute mechanisms.

5.2 Recommendations

Although the NLS has made many positive improvements to litigation services, some areas for future attention were noted.

Business Processes

While the new structure supports closer relationships among litigation units—the regional offices, CLS, and other litigation units—there is less communication and engagement between, in particular, regional offices and Portfolios (including LSUs). In addition, the approach to working together on litigation files is not consistent across the NLS and Portfolios (including LSUs). Therefore, the evaluation found the need for better clarity of the business processes related to the roles and responsibilities of the NLS and Portfolios/LSUs during the litigation process. Facilitating an effective relationship between the NLS and Portfolios/LSUs is important not only to provide litigation counsel with the client perspective, but also for regional litigation counsel to have a network of Portfolio/LSU counsel to whom they could seek advice about a legal area or a policy decision of the client.

Recommendation 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.

Communication and Engagement

The need for improvement in the communications from senior NLS management to NLS staff was evident from some evaluation findings. For example, clarity of when to involve the ADAGO on litigation files was an issue raised by both LSU and NLS counsel. Another example was simply having a better understanding of the objectives and achievements of the NLS. Justice personnel also suggested that an unintended consequence of the creation of the NLS was that there is less communication and engagement between NLS litigation units and Portfolios (including LSUs). Ongoing communication and engagement between these groups was highlighted as important to understanding client departments’ realities and policy objectives in the context of litigation files.

Recommendation 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 the NLS (e.g., across regions).

Alternative Dispute Resolution

While alternative dispute resolution options are being utilized, 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).

Recommendation 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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