Office of the Legal Advisor to the Department of National Defence and the Canadian Forces
August 2010

EXECUTIVE SUMMARY

The Department of Justice has established dedicated departmental legal service units (DLSUs) for most government departments and agencies. These units provide client organizations with legal advice to facilitate their operations. This audit focused on the management practices of the Office of the Legal Advisor to the Department of National Defence and the Canadian Forces (DND/CF LA), which is the legal services unit serving the DND/CF.

The DND/CF LA provides legal services to the DND/CF in all areas of the law, except those related to military law, military discipline, and the military justice system for which the Office of the Judge Advocate General (JAG) is responsible.

The scope of the audit included the operations and activities of the DND/CF LA in the National Capital Region. The planning and the on-site examination phases for this audit were carried out between June 2009 and February 2010.

Management Framework

The DND/CF LA has a well-developed management framework. It has clearly defined and communicated strategic directions and strategic objectives aligned with its mandate, established objectives and priorities annually as part of the client's annual business planning cycle, and assessed the risks it faces in achieving its objectives. This information is described in the DND/CF LA’s Business Plan 2009-2010. It is also communicated to employees in the DND/CF LA’s employee orientation manual and in retreats and meetings with professional and support staff in the LSU. The DND/CF LA tracks its progress through its weekly management meetings.

The DND/CF LA is appropriately organized to meet its client department’s needs. As part of a three-year organizational transformation, it has been reorganized into four divisions: Litigation and Legal Advisory Services, Commercial Law Advisory Services, Public Law Advisory Services, and Support Services. Responsibilities and accountabilities are clearly defined. The Functional Responsibilities Matrix available on the DND/CF LA Web site describes the key responsibilities of the law practice teams within each division.

The DND/CF LA has published comprehensive service standards. These are detailed in the draft Memorandum of Understanding (MOU) between the Department of Justice and the DND/CF for the provision of legal services between April 1, 2009 and March 31, 2014. Client satisfaction against these service standards is monitored through a formal triennial survey (developed by the Office of Strategic Planning and Performance Measurement (SPPM)) and through discussion with client management. The workload within the DND/CF LA is monitored and distributed in a manner that supports the achievement of its service standards. Workload is high and demanding. Regular team meetings and bilateral discussions between team leaders and individual lawyers help to ensure that priority issues are addressed in a timely manner.

A range of mechanisms are used to provide both professional and support staff with the information they require to carry out their responsibilities. Nonetheless, some lawyers indicated a need for more information both on the client department and on the activities of their colleagues in other sections of the LSU. In addition, the DND/CF LA does not have an employee orientation program and its current orientation manual is out-of-date. Efforts were under way to publish an updated version of the DND/CF LA’s administrative manual in early 2010. A new orientation manual is also planned. It is important that the approved manuals are communicated to all staff. A recommendation has also been made that the effectiveness of the DND/CF LA’s communications practices be assessed and, if necessary, additional communication practices be implemented.

Human Resources

The DND/CF LA has developed a comprehensive human resources plan as part of its Business Plan 2009-2010. The plan describes several items that may impact on the number of lawyers and support staff in the LSU and the assignment of work.

The Senior General Counsel and Legal Advisor stated that the DND/CF LA is on track to be adequately resourced. The business plan called for the addition of five support staff positions. Some directors identified a need for additional resources. Shortfalls are managed by juggling priorities and reassigning work. Based on client feedback and the extent to which overtime was reported in iCase, this approach was found to be working satisfactorily.

The DND/CF LA’s tracking of employees’ professional development requires improvement. The majority of respondents to a 2008 well-being survey undertaken by the DND/CF LA indicated that they had not received adequate training for the work they were doing. The Business Plan 2009-2010 identified increased professional development and training opportunities for career advancement as one strategy to address challenges in attracting and retaining highly skilled and motivated employees. Reports on training compiled by the DND/CF LA only include information on courses that have an associated cost. The reports do not capture information on informal training that nonetheless meets the Department of Justice’s definition of professional development. As a result, the DND/CF LA cannot ensure that its employees are receiving the required amount of professional development. A recommendation has been made to implement a process to track and report all professional development taking place in the DND/CF LA.

Performance appraisals and associated individual learning plans are completed in a timely manner for most of the DND/CF LA’s lawyers and support staff. Where a performance appraisal was not conducted, there was an appropriate explanation.

Financial Resources

The financial resources provided to the DND/CF LA by the Department of Justice and DND/CF have enabled it to provide satisfactory levels of service. The DND/CF LA follows the required DND financial administrative policies and procedures. Regular reports are reviewed, reconciled, and verified. Pre- and post-verifications of transactions undertaken by DND/CF in 2009 did not identify any significant compliance issues.

Materiel Resources

DND/CF provides and maintains an inventory of the key physical assets utilized by the DND/CF LA. No losses have been reported in the last four years, with the exception of three DND-supplied laptop computers. This loss was reported to the Military Police. Locks for laptop computers were issued and their use mandated in response to the incident. Access to the DND/CF LA office suite is controlled.

Information Systems

The DND/CF LA’s management uses relevant information from financial and timekeeping systems to support management decision making and accountability. Because of the security requirements associated with many of the DND/CF LA’s files, it has developed its own opinion database that is used to scan and store searchable national security opinions. It has also developed a standalone database of labour and employment law opinions for use by employees excluded from collective bargaining. As a result, DND/CF LA does not provide to LOPORS some opinions of precedential value where the opinions raise issues of national security confidentiality or pertain to labour relations. Since December 2009, the DND/CF LA has been working at gathering its existing documents to input them in the Department of Justice's Legal Knowledge Portal, Justipedia.

Information Management

Files are opened and tracked using the Recorded Information Management System (RIMS) and are closed on a regular basis. The physical location of all files selected as part of the audit sample was consistent with the information in RIMS. Even though file creation is centralized, multiple versions of the same file are sometimes created when only one is required. There is also a lack of consistency in the way files are structured. As a result, it can take significant time to find all of the relevant information in a file. There are no formal DND/CF LA-specific written policies and procedures governing information and file management. A recommendation has been made that formal procedures for the management of information be included in the new policies and procedures manuals being developed by the DND/CF LA.

Compliance with Legislation and Policies

There is compliance with key government legislation and policies including the Financial Administration Act and the Official Languages Act.

Interfaces with Other Justice Sections

The DND/CF LA’s interfaces with the Department of Justice are satisfactory.

Interfaces with the Client

The DND/CF is satisfied with the legal services provided by the DND/CF LA. The 2008 survey of the DND/CF LA generally rated the delivery of services as excellent.

The relationship between the JAG and the DND/CF LA is a continuing challenge for the DND/CF LA. According to the LSU, many within the CF, including the JAG, believe the CF should only go to the JAG for legal advice. We were told that the JAG engages the DND/CF LA at its discretion, or the client must determine who to consult: the DND/CF LA, the JAG, or both. As a result, there is a risk the client may not receive adequate and/or timely legal advice. The DND/CF LA has made efforts to reach out to its client department and explain its role. A mediator was to be appointed who would identify legal areas concerning which the DND/CF LA must be involved and when the JAG must consult with it. We understand that this initiative has not gone forward. A recommendation has been made that the state of the working relationship between the DND/CF LA and the JAG continue to be brought to the attention of senior officials in the Department of Justice.

The management responses to the recommendations contained in this report were provided by the Senior General Counsel, Office of the Legal Advisor to the Department of National Defence and the Canadian Forces.

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