Evaluation of Litigation Services

Appendix B: Profile of Litigation Services

This section provides additional details about Justice Canada’s litigation services.

Overview of litigation services

The National Litigation Sector

The National Litigation Sector (NLS) is accountable for litigation involving the Government of Canada across the country. Litigation resources are managed under a single unified budget and consolidated under the ADAG NLS.

ADAG NLS

The ADAG NLS has responsibility for overseeing the NLS, and for providing substantive, strategic, and policy advice to the Minister, Deputy Minster, and Privy Council office on issues arising from the conduct of litigation. The ADAG NLS also coordinates litigation involving the Federal Crown in all provinces and territories. In providing national leadership and management of the Department’s litigation services, the ADAG NLS is accountable for:

  • managing the conduct of litigation, which includes file assignment, approval of litigation positions (jointly with the Portfolios), and reporting;
  • ensuring the coherence, consistency, and efficiency of litigation services, which includes strategies such as development of national approaches for specific areas of litigation as well as all national litigation policies and directives, and standardization of resource use; and
  • developing an analytical and strategic capacity for litigation services, which includes identifying trends and providing advice on mitigating and managing risks, including the use of settlements.

The office of the ADAG comprises the ADAG, Deputy ADAG, Special Advisors, executive assistants, a Director General of Business Operations, and a business management team.

Six RDGs and the Director General of the CLS report to the ADAG NLS. In addition, the Director General of the International Assistance Group, which is out of scope for this evaluation, also reports to the ADAG NLS.

Reporting to the Deputy ADAG NLS are the Directors of the NeDLSS; other areas that are out of the scope for this evaluation (but that report to the Deputy ADAG NLS) include the Litigation Practice Management Centre, the Criminal Conviction Review Group, and the National Security Group.

The remainder of this section focusses on areas of the NLS that are within the scope of this evaluation.

Board of Directors (BoD)

The NLS is governed by a BoD, which oversees NLS decisions pertaining to substantive management responsibilities, national projects, talent management, and change initiatives. Members of the NLS BoD include: the ADAG NLS (chair), the Deputy ADAG NLS (co-chair), RDGs from all six regional offices, NCR Directors General and Directors, a Financial Management Advisor, and a Human Resources Client Services Director.

Litigation services (Regional offices, CLS)

The responsibility for providing litigation services to the federal government is shared by CLS and regional litigation counsel. Regional offices are primarily responsible for handling litigation within their own regions,Footnote 45 while CLS handles litigation within its geographic region (the Ottawa Region, which contains eastern and northeastern Ontario). NLS litigation counsel work with counsel in departmental LSUs on litigation matters.

Litigation support (NeDLSS)

NeDLSS is a division of the NLS, originally established in 2014. NeDLSS plays a role in carrying out the Department’s e-discovery and litigation readiness responsibilities.

NeDLSS provides a variety of support services to legal teams across all regions in relation to litigation and the use of technology. Services include providing assistance with discovery planning, document intake, e-discovery, and legal review. In addition:

  • The Evidence Management Team is a standing team of experienced paralegals and counsel who can assist with evidence management and assessment projects. This is a cost-recovered service that aims to assist with the efficient and cost-effective management of evidence for files with a high volume of documents to review.
  • Members of regional Litigation Support Centres also offer services to assist with document production and exchange, and with remote access to documents.

Litigation committees

The NLS also has or reports to various committees, which support a national approach to litigation, and these are described below.

National Litigation Committee

The NLC is a Standing Advisory Committee to the DM and Deputy Attorney General of Canada which offers a forum for senior level engagement on all significant litigation (at any court level). Its mandate is to “ensure that the Government of Canada’s interests are properly represented in legal proceedings; consistent positions are adopted nationally; the Attorney General acts as a model litigant; necessary consultations across government are undertaken; legal risk is managed appropriately; and sound advice is provided to the Minister and DM in significant litigation”. The NLC makes recommendations to the Minister and DM regarding legal positions in significant litigation, as well as litigation-related legal opinions, advice, practice directives and guidelines, and other matters.

Regional litigation committees

The purpose of regional litigation committees is to monitor significant litigation happening in the region. While counsel and their direct managers are responsible for day-to-day carriage of litigation and advisory files, regional litigation committees bring a cross-Portfolio perspective, and help to ensure that consistent positions are taken in litigation; that issues of law or policy have been identified and consultations take place as appropriate; and that the Attorney General acts as a model litigant. Regional litigation committees provide guidance and advice to counsel to assist them in providing high-quality legal services. In addition, these committees provide a link between the regions and the NLC.Footnote 46

Regional litigation committees include the following:

  • National Capital Region Litigation Committee
  • Northern Region Law and Litigation Committee
  • Atlantic Regional office Law and Litigation Committee
  • British Columbia Regional office Law and Litigation Committee
  • Ontario Regional office Litigation Committee
  • Prairie Regional office Law and Litigation Committee
  • Québec Regional office Legal Affairs Committee

Additional committees which support a national approach to litigation

Other committees that support a national approach to litigation include the following:

  • The Deputy Minister Committee on Litigation Management is co-chaired by the ADAG NLS and the Privy Council office. This committee reviews information on litigation that is going to Cabinet committees, including legal positions being taken and funding requests for large settlements.
  • Class actions committees developed as key features of the National Class Proceedings Framework (which was officially launched by the NLS in March 2019). These include the Class Proceedings Steering Committee (which provides oversight and high-level guidance to the ADAG NLS on class action proceedings) and the Class Actions Oversight Committee (which contributes to consistency in the provision of legal advice, and the development of policy direction as it relates to the implementation of the National Class Proceedings Management Framework).
  • ADM steering committees are also struck as needed for large litigation, such as class actions.

Other areas of Justice Canada involved in litigation services

Portfolios and LSUs

The role of Portfolios in relation to litigation services has changed under the NLS structure. Portfolios no longer manage litigation, but they continue to be accountable for management of the law, and for liaising and managing relationships with client departments. In addition to its management structure at headquarters, each Portfolio has LSUs that are co-located with client departments and agencies.

Specifically, Portfolios (with their LSUs) are responsible for:

  • seeking instructions from client departments;
  • developing strategic litigation positions to advance the law, which consider both client and broader government interests;
  • ensuring the integration and coherence of legal advisory, policy and litigation strategy advice in the Portfolio’s areas of legal expertise, which includes identifying litigation trends impacting client departments;
  • analyzing litigation trends and developing strategies to respond to these trends (in consultation with NLS); and
  • forecasting the needs and costs of advisory and litigation services for client departments, which includes ensuring that services provided remain within negotiated funding agreements and resource levels.

While both the ADAG NLS and the Portfolio ADMs are accountable for the development of Justice Canada litigation positions, the nature of their respective involvement in the development of these positions depends on the type of litigation. For high-volume, low-complexity litigation, the NLS is responsible for day-to-day conduct and management. Portfolio involvement in the development of litigation positions for low-complexity litigation is mostly at the strategic level (for example, advising on the development of national approaches for litigation in a specific area of the law). Portfolios are more involved in the development of litigation positions for sensitive, high-profile litigation, as their input is sought at every step of the process as positions develop.

LSUs that provide direct litigation services

In addition to the NLS, litigation services are also directly provided by areas outside of the NLS, namely:

  • the Tax Law Services unit in the NCR, which is part of the Tax Law Services Portfolio;
  • the National Security Litigation and Advisory Group LSU, which is part of the Public Safety, Defence and Immigration Portfolio;
  • Treasury Board Secretariat LSU, which is part of the Central Agencies Portfolio; and
  • the Competition Bureau Legal Services, the Employment and Social Development Canada/Veterans Affairs Canada LSUFootnote 47, and the Transport Canada LSU, which are part of the Business and Regulatory Law Portfolio LSU litigators report to LSU Heads, but LSUs receive functional directions from the NLS.

Litigation services provided by these entities report to their Portfolio.

Specialized units and centres of expertise

There are a number of areas within Justice Canada that have counsel who are experts in certain areas of the law. Upon request from litigation counsel, counsel in the Public Law and Legislative Services Sector and centres of expertise provide legal advice on areas of the law in which they are specialists.

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