Litigation Branch Evaluation Final Report

5. Conclusions

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

5.1. Relevance

Is there a continued need for Litigation Branch services?

The Litigation Branch continues to provide services relevant to the needs of the Government of Canada. In particular, the Branch serves the needs of government through the role played by the ADAG Litigation in coordinating all litigation involving the government, and through the centralized and specialized legal expertise (CLS, MCAMLU, NSG and IAG) and legal support (LPMC and National eDiscovery) provided by its units.

The ongoing relevance of, and need for, Litigation Branch services are supported by the increasing demand for the Branch services. Although changes in demand indicators varied among units within the Litigation Branch, data from iCase show an increase over the evaluation period in both the number of files actively managed by the Branch, and the overall number of hours expended by the Branch on actively managed files. The increased level of effort on litigation files appears to be driven by legal practice trends, as well as increases in both the complexity of files and the volume of documents and evidence associated with files.

Does the delivery of legal services by the Litigation Branch continue to respond to federal government priorities and roles and responsibilities?

The evaluation found that the work of the Litigation Branch is closely aligned with federal government priorities, and that Justice’s plans and priorities in relation to litigation work shift in response to changes in federal priorities. Evaluation findings also provide evidence that the work of the Litigation Branch supports the Minister of Justice and Attorney General of Canada in fulfilling responsibilities under a variety of federal statutes, including the Department of Justice Act, the Extradition Act, the MLACMA, the Canada Evidence Act, the Canadian Security Intelligence Service Act, the Security of Information Act, andthe Security Offences Act. In doing so, the Litigation Branch assists the Minister in ensuring that “the administration of public affairs is in accordance with the law” (thus fulfilling requirements outlined in section 4 of the Department of Justice Act).

Is the provision of legal services by the Litigation Branch consistent with federal roles and responsibilities and the departmental mandate?

Under the Department of Justice Act, Justice Canada has a mandate to support the roles of the Minister of Justice and Attorney General of Canada. By conducting litigation on behalf of the Crown (representing any government department or agency) and coordinating litigation-related services across the federal government, the Litigation Branch as a whole supports the Attorney General in carrying out its responsibilities under the Act — namely, to regulate and conduct litigation for or against the Crown or any department (s. 5[d]), and to advise federal department heads on matters of law affecting their departments (s. 5[b]). In addition, the Litigation Branch undertakes delegated responsibilities for the Minister, through the work of the IAG and the NSG, under legislation related to extradition, mutual legal assistance, and national security.

Evaluation results also demonstrate that the Litigation Branch supports the Department of Justice in meeting its strategic outcomes. The Branch’s work related to access to justice (e.g., through participation in the Access to Justice Working Group) helps to support the Department in ensuring a fair, relevant and accessible Canadian justice system (the first strategic outcome). Its provision of responsive, high-quality services to essentially any government department or agency contributes to the Department’s fulfillment of its second strategic outcome (a federal government that is supported by high-quality legal services).

5.2. Effectiveness – Performance

To what extent is the Litigation Branch achieving its expected outcomes?

High-quality, responsive and timely litigation services and legal advice: Evaluation results provide strong evidence that the Department of Justice is upholding its commitment to deliver high-quality legal services to government departments and agencies that are timely, responsive and useful.

Multiple lines of evidence confirm that the Litigation Branch provides high-quality services to client departments. Results from key informant and case study interviews, the Litigation Branch survey, and Client Feedback Surveys show a high level of satisfaction with the quality of Litigation Branch services, and provide evidence that positive perceptions about the quality of Branch services are shared by representatives of the Litigation Branch, client departments, and other areas of the Department of Justice. Evaluation stakeholders also provided evidence that service quality is relatively consistent among units of the Litigation Branch; perceptions of quality were high among key informants and survey respondents, regardless of their affiliation or experience in working with particular units of the Branch.

Evidence from all sources indicates that Litigation Branch services are responsive to the needs of clients. Results from Client Feedback Surveys and stakeholder interviews indicate a high level of client satisfaction with the responsiveness and courteousness of Branch services, and the degree to which clients are kept informed of developments on their files. In general, the kinds of issues about which the Litigation Branch consults with clients and the extent to which files involve direct interaction between the Branch and clients (or the extent to which DLSU counsel mediate Litigation Branch/client interactions) vary appropriately according to the file type and the client department involved. However, the Litigation Branch received Client Feedback Survey scores slightly below the departmental target with regard to the “regular provision of informative progress reports or ongoing feedback on the status of service requests to clients”. This may indicate some room for improvement in verifying clients’ expectations regarding the nature and extensiveness of consultations and progress reporting at the outset of files, and in clarifying the respective roles of Litigation Branch and DLSU counsel on the file, including relaying information to clients.

The evaluation found strong evidence that the Litigation Branch provides timely services. All sources of evidence demonstrate that the Branch is successful in meeting deadlines (court-imposed deadlines as well as client and other internal deadlines) and responding to client requests in a timely manner.

Consistent advice and legal positions, and effective advocacy of a whole-of-government approach: The evaluation found that the Litigation Branch is contributing to consistency both across the Department of Justice and within the Government of Canada as a whole. At both of these levels, consistency is facilitated by the overarching coordinating functions carried out by the ADAG Litigation and central committees, as well as by Litigation Branch counsel in the way that they work across the Department and with other affected departments on litigation files.

Evaluation results indicate that the ADAG Litigation is effectively carrying out the position’s national coordinating role — in particular, through direct contributions to tracking and briefing/reporting on litigation issues, and through active participation on central committees dealing with high-profile litigation issues, namely the NLC and the NSIC. Each committee has its own mandate and role to play in ensuring a consistent approach to litigation issues; the evaluation found evidence of the effectiveness of each of these committees in this area.

At the working level of Branch counsel, the evaluation found that, for the most part, the Litigation Branch has effective mechanisms and practices in place to ensure that advice and legal positions are internally consistent and in line with the departmental approach to litigation issues, and that they contribute to a whole-of-government approach to litigation issues. Internally, the Litigation Branch has a variety of information-sharing mechanisms in place to ensure regular communications among units within the Branch. Its staff engages in regular consultations with other areas of Justice Canada — thus helping to ensure a consistent departmental approach to litigation matters. Similarly, all lines of evidence together confirm that the Litigation Branch engages in consultations with other government departments and agencies when necessary. These consultations contribute to a whole-of-government approach to litigation-related issues.

Although evaluation results concerning consistency are generally positive, key informants identified a few gaps or areas for improvement — both in the functioning of broad, high-level coordinating structures, and in Branch-level communication/consultation practices. According to a few key informants, the mandate of the Litigation Branch and the Office of the ADAG Litigation could be expanded to include responsibilities related to the development of civil litigation policy, as the Department currently has a gap in this area. Key informants also identified potential areas for improvement in the functioning of the NLC — in terms of ensuring active participation of all meeting participants, and considering the development of practice directives or guidelines for litigation, in addition to providing case-specific direction. At the Branch level, results from the Litigation Branch survey and key informant interviews indicate some room for improvement in the relationship between the Branch and at least some DLSUs. As the working relationship naturally varies from one DLSU to another, in some cases, potential benefits could be achieved through greater involvement of DLSUs in the litigation work carried out by the Branch. A number of key informants also identified some room for improvement in communications and coordination between the Litigation Branch (MCAMLU, in particular) and the regions on class actions files — in particular, to ensure that provincial class action rules and legal cultures are adequately taken into consideration on class actions cases.

Timely and effective contributions to the identification, assessment, management and mitigation of legal risks: The evaluation found that the Litigation Branch makes important contributions to LRM on most files. Although the involvement of the Branch in the various aspects of LRM is responsive to requests for services and, therefore, varies among files, multiple lines of evidence indicate a high level of satisfaction (among clients as well as Litigation Branch and DLSU representatives) with Branch contributions to the identification, assessment, communication, mitigation and management of legal risks, as appropriate, on files.

Evaluation results, however, point to some potential limitations to the risk assessment protocol and tools used by the Litigation Branch to guide the assessment and communication of risks. An analysis of data from iCase, along with observations from key informant interviews and the Litigation Branch survey, indicate that counsel may be experiencing some difficulties in complying with iCase reporting requirements related to legal risk assessment, and with implementation of the new LRM framework with respect to advisory files. Gaps in risk assessment data collected by the Branch may be explained, at least in part, by the challenges that counsel face in making accurate risk assessments at an early stage (particularly for class actions files), and by limitations to the use of a standardized approach (through the new LRM toolkit and grid) in the assessment and communication of legal risk.

Contributions to informed decision making: The Litigation Branch contributes to informed decision making by making senior government officials aware of legal risks, legal issues and legal options. Clients must weigh Litigation Branch advice against other considerations in making decisions, and evidence indicates that the advice is considered by clients in developing legal strategies and making decisions most of the time, and that it is often followed. The evaluation found that Branch practices (such as regular consultations with clients and other affected departments/agencies, involvement of clients in the development of legal strategy and positions, and provision of clear, practical guidance), as well as the expertise of Branch counsel in specific areas of the law and the litigation process, help to ensure the usefulness of Litigation Branch advice to clients. These practices are major factors contributing to the high degree of consideration given to Branch advice.

The Litigation Branch also supports informed decision making by directly supporting the Minister of Justice in the exercise of his ministerial functions. Results from key informant interviews, the Litigation Branch survey and the file review show that the IAG is meeting its delegated responsibilities under the Extradition Act and the MLACMA, and that the NSG is effectively carrying out its role as the coordinating office within the Department of Justice regarding section 38. Through effective management of these delegated functions and comprehensive briefing, these units contribute to informed ministerial decision making.

The Litigation Branch, through the LPMC’s management of the AAP, also provides decision-making support to the Minister of Justice regarding outsourcing and the appointment of legal agents. Evaluation results indicate that the process for appointing legal agents is effective and appropriate, that legal agents are used appropriately (i.e., when necessary), and that units within the Litigation Branch have engaged in active monitoring of agent performance. Since the 2011 audit of the AAP, LPMC has improved the program by developing national standards and reporting requirements that make the process of hiring and using legal agents more transparent, accountable and efficient.

Although not a delegated function, the Litigation Branch also supports ministerial decision making related to intervening in court, filing an appeal, and approving positions to be taken and facta to be filed with the Supreme Court of Canada. The Litigation Branch has a structured process in place for providing advice to the Minister that is documented in its policies and the Civil Litigation Deskbook.

Contributions to Justice Canada’s support of a bijural and bilingual legal system: The evaluation found that the Litigation Branch supports its employees to work in a bilingual legal context and to respond to clients’ official language needs. Results from Client Feedback Surveys and key informant interviews indicate a high level of satisfaction with the accessibility of Litigation Branch services — and with the Branch’s ability to meet the demand for services — in both official languages. However, key informant interviews pointed to a potential opportunity to improve bilingual capacity within the Branch by expanding opportunities for counsel to participate in second language training.

The Litigation Branch also supports Justice Canada’s ability to work effectively within a bijural legal context. Training sessions dealing with Canada’s bijural legal system and practices, such as employment of bijural counsel and use of structures to facilitate discussion about bijural issues, support the Branch in addressing both common and civil law matters.

Availability of appropriate training, tools, structures and resources to support the delivery of legal services:

Training

The Litigation Branch considers training a priority. This priority is exemplified through the various training opportunities that the Branch offers for its counsel as well as for Department litigation counsel more generally. Training records show that a substantial proportion of Litigation Branch employees took part in training events in 2011/12 and 2012/13. Nevertheless, multiple sources highlight training as an area for improvement. Suggestions for improvement include offering more training in practical skills required by junior counsel (particularly in-court skills), ensuring adequate training relevant to criminal litigators as well as civil litigators, and offering more training in specific, specialized areas.

Tools, structures and processes

The Litigation Branch makes use of and/or participates in various quality management or quality control tools, structures and processes. These include formal tools and structures, as well as informal practices intended to foster high-quality legal services. The evaluation results indicate that many tools and structures (including departmental practice groups and directives, the CLS Litigation Committee, the NLC, internal mentoring practices, and eDiscovery software) are useful to the work of Branch employees. However, issues were identified with both the LRM assessment process and Justipedia, which reduce their usefulness.

The evaluation also found some room for improvement related to tools, structures and processes to assist the Litigation Branch in handling the increasing volumes of documents and evidence on files, and in managing classified documents:

Evaluation results also identified needs for greater expertise and additional resources for electronic court procedures and hearings, improved information technology systems that are more coordinated across the Department of Justice, improvements in the “shared services approach” to reduce administrative burdens on counsel, as well as improvements to iCase and GCDOCS to facilitate more effective file searching.

Human resources

Although PSES results indicate a high degree of confidence in the capability of Branch employees, the evaluation found evidence of concerns regarding the retention of staff and the adequacy of certain types of staff, in particular paralegals and administrative staff.

5.3. Efficiency and Economy

Is the Litigation Branch facing any challenges in terms of available resources?

Between 2008/09 and 2013/14, Litigation Branch expenditures increased by 31%. This increase is due to salaries, as expenditures on operations and maintenance have declined. Salary expenditures have risen largely due to the increase in staff, which rose 25% during the time period covered by the evaluation. The additional staffing covered the rising workload as most units of the Branch experienced increased demand for their services.

The evaluation experienced difficulty assessing the sufficiency of the current staffing resources. Of course, Litigation Branch stakeholders pointed to workload pressures and the need to work long hours during peaks in demand. However, the average annual level of effort for counsel and paralegals for most units of the Branch appeared reasonable, based on iCase data. There are two limitations to this conclusion. One is that IAG noted that their staff was not accurately entering hours and made an effort to ensure that hours were appropriately recorded, which led to a sizeable increase in hours. This raises the question of whether other units are similarly underreporting in iCase. A second issue is the recording of time to corporate files (i.e., non-legal work for the Department), which rose considerably for CLS during the period covered by the evaluation (from 9% of total time to 28%). Time recorded to corporate files was not unique to senior counsel, as junior counsel and paralegals also recorded substantial time to corporate matters. If the expectation is that most counsel and paralegals should maximize their time on client files, the trend for CLS is in the opposite direction. This again may be due to inaccurate recording of hours, given the rapid, unexplained increase. A complete understanding of the work of the Branch and an ability to assess if resources are adequate and deployed to best effect depends on accurate entry and allocation of hours.

To what extent are Litigation Branch services provided in a cost-efficient manner?

The evaluation found that the Litigation Branch is generally following the Law Practice Model by aligning resources based on the level of legal risk and complexity of the files. This approach emphasizes the efficient use of resources by assigning low-risk, low-complexity work to junior counsel, and more complex and higher risk files to senior counsel. All lines of evidence indicate that files and tasks are appropriately assigned. In addition, as would be expected, the level of effort (number of hours) spent on files typically increases with legal risk and complexity levels.

Delegation also includes the use of paralegals on files. Counsel and paralegals report that document production is the primary activity for which paralegals are used. However, there is evidence that the Litigation Branch is using paralegals for a variety of activities, especially within the IAG where they are used in very specialized ways. Nonetheless, over half of the paralegals surveyed believe that they have, at least occasionally, worked on files where counsel spent time on tasks that paralegals could have done. This suggests that there may be opportunities to expand the types of activities assigned to paralegals as resources permit.

The impact on the workload of the Litigation Branch and indeed on that of the Department as a whole from expanded discovery obligations and the rise of eDiscovery is substantial. The National eDiscovery and Litigation Support Services is intended to create efficiencies for the Department by serving as a single point of access for discovery, eDiscovery, and disclosure resources, services and advice. Although the potential efficiencies and cost savings of the Group have not yet been documented, it addresses an issue of concern within the Litigation Branch and the Department.

Another way to contain legal costs and provide efficient services is to work toward an efficient and effective resolution of cases. Not all files are appropriate for dispute resolution processes, as for some issues there is the need and desire to receive a court decision. Based on multiple lines of evidence, the Litigation Branch appears to generally be pursuing dispute resolution processes when appropriate. A potential area of improvement is expanding the types of dispute resolution options attempted (negotiation remains the most used approach), although a more in-depth study would be required to provide a definitive finding.