Litigation Branch Evaluation Final Report

Executive Summary

1. Introduction

Under the authority granted by the Department of Justice Act, the Attorney General of Canada (AGC) has responsibility for all litigation for or against the Crown, any department, or Crown agent corporations. The litigation function within the Department of Justice is handled by the Litigation Branch at headquarters, the regional offices, and some specialized Departmental Legal Services Units (DLSUs). The Assistant Deputy Attorney General Litigation (ADAG Litigation) has functional and coordination responsibility for all litigation conducted by or on behalf of the Department of Justice.

The evaluation of the Litigation Branch was conducted between September 2013 and January 2015. This is the first evaluation of the Litigation Branch. In accordance with the Treasury Board Secretariat’s 2009 Policy on Evaluation, the evaluation assessed the relevance and performance (effectiveness, efficiency and economy) of the Litigation Branch. It covers the Litigation Branch’s work between fiscal years 2008/09 and 2013/14.

2. Methodology

The evaluation methodology consisted of a document and data review, key informant interviews, a legal file review, case studies, and a survey of Litigation Branch counsel and paralegals.

3. Findings

3.1. Relevance

Continued need. The Litigation Branch continues to serve the needs of government — in particular through the role played by the ADAG Litigation in coordinating all litigation involving the government, and the centralized and specialized legal expertise and legal support provided by units within the Litigation Branch. The ongoing relevance of, and need for, Litigation Branch services are supported by the increasing demand for its services for increasingly complex files.

Alignment with federal government priorities. The evaluation found that the work of the Litigation Branch is closely aligned with federal government priorities. The Litigation Branch supports the Minister of Justice and Attorney General of Canada in fulfilling responsibilities under a variety of federal statutes. 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).

Consistency with federal government’s roles and responsibilities and Justice Canada’s mandate. The Litigation Branch supports the Minister of Justice and Attorney General of Canada in fulfilling his responsibilities under the Department of Justice Act by conducting litigation on behalf of the Crown (representing any government department or agency), and coordinating litigation-related services across the government. The Branch also undertakes delegated responsibilities for the Minister, through the work of the International Assistance Group (IAG) and the National Security Group (NSG), under legislation related to extradition, mutual legal assistance, and national security. The Litigation Branch supports both strategic outcomes of the Department of Justice through its work related to access to justice and its provision of high-quality, responsive services to essentially any government department or agency.

3.2. Performance

Effectiveness. Multiple lines of evidence confirm that the Litigation Branch provides timely, high-quality, responsive services to client departments. Additionally, evaluation stakeholders provided evidence that service quality is relatively consistent among units of the Branch. The evaluation found a high level of client satisfaction with the responsiveness and courteousness of Litigation Branch services, as well as the degree to which the Branch keeps clients informed of developments on their files. However, Client Feedback Survey results point to some potential 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 Litigation Branch is contributing to consistency both across the Department of Justice and within the Government of Canada as a whole. Evaluation results indicate that the overarching coordinating functions carried out by the ADAG are effectively contributing to a nationally consistent approach to litigation issues. At the working level of Branch counsel, a variety of information-sharing mechanisms are in place to ensure regular communications among units within the Branch. All lines of evidence together confirm that the Litigation Branch engages in consultations within the Department of Justice and with other government departments and agencies when necessary, and that these consultations contribute to a whole-of-government approach to litigation-related issues.

Evaluation results concerning consistency are generally positive. However, evaluation stakeholders identified potential for improvement in a few areas, including greater involvement of some DLSUs in the litigation work carried out by the Branch in some cases, and better coordination between the Management of Class Actions and Mass Litigation Unit and the regions to ensure that provincial class action rules and legal cultures are adequately taken into consideration.

Multiple lines of evidence indicate a high level of satisfaction with Branch contributions to the identification, assessment, communication, mitigation and management of legal risks, as appropriate, on files. However, 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 legal risk management framework with respect to advisory files.

The evaluation found that the Litigation Branch effectively contributes to informed decision making in a variety of ways:

The evaluation found that the Litigation Branch supports its employees to work in a bijural and bilingual legal context. 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.

Although the Litigation Branch considers training a priority and offers various training opportunities for counsel across the Department of Justice, some training gaps were identified. Suggestions for improvement include offering more training in practical skills (particularly in-court skills) required by junior counsel, ensuring adequate training relevant to criminal litigators and civil litigators, and offering more training in specific specialized areas.

The Branch makes use of and/or participates in various quality management practices intended to foster high-quality legal services. The evaluation results indicate that many tools and structures (including departmental practice groups and directives, the Civil Litigation Section Litigation Committee, the National Litigation Committee, internal mentoring practices, and eDiscovery software) are useful to the work of Branch employees.

The evaluation 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 managing classified documents. Key informant interviews provided evidence of issues with the functionality of Ringtail, as well as challenges in working within the secure context necessary for handling some classified information. Evaluation evidence also indicates that the National eDiscovery and Litigation Support Services are underutilized; in addition, litigation counsel lack awareness of the potential for this group to assist them in efforts to improve the efficient management of large quantities of documentary evidence, and to deal with increasing document review requirements on litigation files.

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, and improvements to iCase and GCDOCS to facilitate more effective file searching.

Efficiency and Economy. The evaluation experienced difficulty assessing the sufficiency of the current staffing resources. Litigation Branch stakeholders raised concerns about the adequacy of certain types of staff (in particular, paralegals and administrative staff), and pointed to workload pressures and the need to work long hours during peaks in demand; nonetheless, iCase data (showing average annual level of effort) suggests that Branch counsel and paralegals are spending a reasonable amount of time on Litigation Branch files. However, the evaluation raised some questions about the accuracy with which Litigation Branch staff record their hours into iCase, and the extent to which work on Litigation Branch files may be underreported. 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 data entry.

The evaluation found evidence of cost-efficient resource use. 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, and all lines of evidence indicate that files and tasks are appropriately assigned. In addition, as would be expected, the level of effort spent on files typically increases with legal risk and complexity levels.

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 they could have done. This suggests that there may be opportunities to expand the types of activities assigned to paralegals as resources permit.

There may be potential for the Litigation Branch to improve efficiency by expanding the types of dispute resolution options attempted. Negotiation remains the Litigation Branch’s most used approach for dispute resolution outside of the court system. While the Litigation Branch appears to generally be pursuing dispute resolution processes when appropriate, other options may provide further opportunities to contain legal costs and improve the efficiency of services. However, a more in-depth study would be required to provide a definitive finding on this.

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 are 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 this group have not yet been documented, it addresses an issue of concern within the Litigation Branch and the Department.