Terms and Conditions of Appointment

Table of Contents

INTRODUCTION

The Department of Justice Act is the authority which provides the Minister of Justice and Attorney General of Canada with the responsibility for the legal affairs of the government as a whole and for providing legal services to individual departments.The Department of Justice's mandate derives from the dual role of the "Minister":

  • in support of the Minister of Justice, the Department is responsible for providing policy and program advice and direction through the development of the legal content of bills, regulations and guidelines;
  • in support of the Attorney General, the Department is responsible for prosecuting federal offences across Canada, including drug offences, litigating civil cases by or on behalf of the federal Crown, and for providing legal advice to federal law enforcement agencies and other government departments and agencies.

To carry out this mandate, the Department of Justice relies on in-house counsel as well as private sector lawyers, both domestic and international, referred to as legal agents. There are two main categories of legal agents: 

  • standing legal agents, who are appointed for an indefinite period of time to conduct work of a specific nature on an as needed basis; and,
  • ad hoc legal agents who are retained to provide services with respect to a specific case/piece of work, or aspect of a case/piece of work.

Generally, engagements in respect of the following types of activities are considered to be "legal services":

  • provision of legal advice and opinions;
  • conduct of civil litigation and criminal prosecutions;
  • dispute resolution;
  • legislative and regulatory drafting; and,
  • negotiation and drafting of other legal documents such as contracts, agreements, etc.

The Government Contracts Regulations establishes a condition and/or limitations for entering into contracts for legal services. Pursuant to section 3 and 4, the Regulations do not apply to contracts for legal services and contracts for the performance of legal services may be entered into only by or under the authority of the Minister of Justice and Attorney General of Canada.All legal agents are appointed by the Minister of Justice.

Part One: Terms and Conditions

1.1 Principle

As a representative of the Attorney General of Canada, a Legal Agent is expected to uphold the highest standards of personal and professional conduct. A Legal Agent must obey the law and be in compliance with federal government policies and must act with integrity, fairness and impartiality at all times.Justice Canada requires loyal and dedicated legal teams that are willing to devote their time and resources to best represent the interests of the government of Canada and its departments and agencies.It is Justice Canada's expectation that all counsel on the legal team will have the level of competence in handling litigation work or providing legal services commensurate with their experience and the type and complexity of file or file activity.Justice Canada expects legal agents to be fiscally responsible and follow recommended and cost-conscious file handling practices; and, comply fully with administrative provisions, billing guidelines and fee and disbursement policies.Justice Canada is increasing its use of web-based technology for business and communication purposes, including account review and in due course payment automation. It is anticipated that e-business capabilities will be a requirement.Every team member (both counsel and legal assistants for whose work counsel is responsible) is expected to strive to contribute significantly to excellent results. Effectively measuring those results presents an on-going challenge. Results may be based on many factors outside of counsel's control.As a minimum, it is Justice Canada's expectation that all legal agents be members in good standing of a provincial or territorial bar, and, be in compliance with the requirements outlined in this document.

1.2 Application of Terms and Conditions

The Letter of Appointment, the Statement of Work, these Terms and Conditions, and any specific protocols and instructions constitute the basis of the agreement between the Legal Agent and the Department of Justice. There are no other terms or conditions, express or implied, other than those in these documents. The Legal Agent must, at all times, act within the scope of this agreement.The Terms and Conditions set out the nature of the Legal Agent's relationship with the Department of Justice. The Terms and Conditions also provide direction to Legal Agents on a number of important matters.These Terms and Conditions apply to all law firms and to all lawyers appointed as a Legal Agent to provide legal services as described in the relevant letter of appointment.These Terms and Conditions and their Schedules are subject to change. Legal Agents will be notified of any changes and the time frame in which they must comply with the changes.

1.3 Obligations

A Legal Agent must act in accordance with these Terms and Conditions, the Statement of Work, the Letter of Appointment, and specific protocols and instructions from the Instructing Counsel, as they are and as they may be amended.

1.4 Personal Conduct

A Legal Agent must immediately notify the Instructing Counsel, in writing, if he or she is subject to/of:

  • any prosecutions or convictions under federal statutes, including the Criminal Code;
  • personal or professional bankruptcy or insolvency; or,
  • any disciplinary proceedings before a law society or bar association.

The Legal Agent must also notify the Instructing counsel in writing if he or she is in default of a court order or decision or a family support obligation by which they may be bound.These requirements exist at the time of appointment and extend throughout the tenure of the appointment.

1.5 Authority to verify compliance

By signing the Statement of Work, the Legal Agent authorizes the Department of Justice to contact:

  • appropriate agencies to verify the Legal Agent's compliance with the personal conduct requirements of section 1.4;
  • federal enforcement agencies to verify the Legal Agent's compliance with federal statutes;
  • the Canada Customs and Revenue Agency to verify the Legal Agent's compliance with the Income Tax Act and other federal statutes under that Agency's authority; and
  • the law society or Bar Association of his or her province or territory to verify the Legal Agent's good standing to practise law.

This authorization applies at the time of appointment and throughout the course of the appointed agent status.

1.6 Sanctions

Failure to comply with these Terms and Conditions or instructions from the Instructing Counsel may result in sanctions including:

  • reduction or disallowance of accounts;
  • initiation of a complaint before the appropriate professional disciplinary body;
  • initiation of a civil action against the Legal Agent; and,
  • suspension or termination of the appointment as Legal Agent of the Attorney General of Canada.

1.7 Terminology

In these Terms and Conditions,

  • ad hoc Legal Agent means a Legal Agent appointed to provide services with respect to a specific case/piece of work, or aspect of a case/piece of work.
  • Standing legal agent means a Legal Agent appointed for an indefinite period of time to conduct work of a specific nature on an as needed basis; and,
  • authorized counsel means the counsel(s) within a specific legal entity, authorized to work on a specific case/piece of work, or aspect of a case/piece of work, in accordance with the terms of the ad hoc or standing appointment mandate.

Unless otherwise specified in these Terms and Conditions, the term Legal Agent refers to both ad hoc and standing legal agents as well as authorized counsel.

Part Two: Conflict of Interest

2.1 Principle

In providing legal services to the Government of Canada, Legal Agents are advocates and administrators of justice. They serve the public interest. Legal Agents must not engage in legal work that could place demands on them that are inconsistent with their duties as an agent of the Attorney General of Canada or that could call into question their capacity to perform their duties objectively and loyally.

2.2 Application

The Department of Justice applies the general principles of conflict of interest when retaining the services of legal agents for civil work. Legal Agents must take all necessary steps to avoid a conflict of interest or the appearance of a conflict of interest.Legal Agents are required to maintain the appropriate procedures within their firms to ensure against conflict of interest as mandated by their respective law society, thereby protecting their interests and that of the federal government.Legal agents are required to provide adequate disclosure of conflict of interest to enable the client to make an informed decision about whether to have the lawyer act despite the existence or possibility of a conflicting interest.Decisions are made in light of the particular circumstances of the case(s) involved and the guidelines are flexible enough to meet operational demands yet protect government interests.Legal Agents must comply with:

  • the Supreme Court of Canada's decision in Martin v. Gray, [1990] 3 S.C.R. 1235;
  • the Bar Association or their provincial code of ethics pertaining to conflict of interest;
  • the provisions of the Values and Ethics Code for the Public Service;
  • the provisions of the Conflict of Interest Act for Public Office Holders;
  • the Parliament of Canada Act, R.S.C. 1985, c. P-1, which provides that no member of the House of Commons or the Senate shall be admitted to share any part of the agency relationship between you and the Attorney General, nor share any resulting benefit; and,
  • the provisions of the Criminal Code respecting Offences Against the Administration of Law and Justice (Part IV) and, in particular, section 121 (influencing public employees).

2.3 Deemed Conflicts

A Legal Agent may be deemed to be in a conflict of interest when the Legal Agent engages in legal work that is directly or indirectly contrary to the interests of the Attorney General of Canada.A Legal Agent may be deemed to be in a conflict of interest when the Legal Agent engages in legal work that:

  • challenges the constitutionality of a federal statute or regulation;
  • involves aboriginal rights or treaty claims;
  • involves the Official Languages Act; or
  • challenges a federal government policy or program.

2.4 Duty to Exercise Due Diligence

Prior to confirming acceptance of an appointment, a prospective legal agent must exercise due diligence in defining and disclosing conflicts. In confirming acceptance of an appointment, a legal agent is agreeing that any costs which are deemed to be unnecessary and incurred as a result of non-compliance with this obligation, may not be paid.

2.5 Duty to Disclose/Notify

A legal agent must immediately disclose to the Instructing counsel any possible conflict situation in order to allow the Attorney General to make an informed decision as to the status of the appointment.A Legal Agent must immediately notify the Instructing counsel when he or she:

  • is uncertain about the applicability of the conflict rules to a particular situation;
  • is involved in a situation that may be a deemed conflict of interest as described in section 2.3; or,
  • is in a situation in which there is or there may appear to be a conflict of interest with the Attorney General of Canada.

If a legal agent or a member of the legal agent's firm, acquires an interest or becomes involved in a situation during the term of the appointment that would result in a conflict of interest or appear to do so, the legal agent must immediately notify the instructing counsel.

2.6 Alleged Conflict of Interest

The Legal Agent must immediately notify the Instructing counsel, if an enforcement agency, a member of the court or a member of the public raises a concern about or objects to an alleged conflict of interest involving the Legal Agent's, or his or her firm's, legal activities.

2.7 Political Activity

If an agent

  • (a) acts in the capacity of an official agent for a candidate, or
  • (b) is a candidate

for election as a member of the House of Commons, a member of the legislature of a province, a member of the Council of the Yukon Territory or the Northwest Territories or a member of the Legislative Assembly of Nunavut, his or her appointment will be suspended or terminated.An agent must immediately disclose to the Instructing counsel, his or her involvement or proposed involvement in the activities outlined in the preceding paragraphs.Notwithstanding the generality of the preceding paragraphs, a legal agent who is declared elected as a member of the House of Commons, of the legislature of a province, of the Council of the Yukon Territory or the Northwest Territories or of the Legislative Assembly of Nunavut thereupon ceases to be an agent.

Part Three: Appointment

3.1 Authority to Act as a Legal Agent

The letter of appointment authorizes a private sector law firm and/or lawyers to act as legal agents of the Minister of Justice and Attorney General of Canada.The Legal Agent's authority to deliver legal services is limited to the mandated services as outlined in the letter of appointment and statement of work.

3.2 Status as a Legal Agent

A Legal Agent's services are not retained by any individual federal government departments or agencies. The Legal Agent is not an employee of the Crown or of any individual department or agency of the Government of Canada.The Legal Agent must not hold himself or herself out as an employee of the Department of Justice.A legal agent firm should not refer to the Department of Justice or its matters, in any marketing or publicity to be carried out by the firm, unless the Department has given prior consent.

3.3 Authorized Counsel

The letter of appointment confirms the name(s) of the counsel authorized to render services in accordance with the appointment mandate.Written prior approval is required from the Instructing Counsel before replacing, removing or adding counsel to the approved legal team, and, more specifically, before any services are rendered by such counsel.Legal agents must ensure appropriate resource allocation for services to be rendered. Legal work must be delegated to the most economical and qualified level of authorized counsel.

3.4 Articling Students and Paralegals

The letter of appointment confirms if the services of a paralegal or articling student are authorized to render services in accordance with the appointment mandate. Where authorized, the use of paralegals and articling students is governed by the rules of the applicable law society or Bar association.See section 9.5 for specifics pertaining to billing restrictions.

3.5 Remuneration

The letter of appointment confirms the negotiated rates of remuneration or remuneration arrangement for the services to be rendered by the authorized counsel. The rate of remuneration is negotiated in the context of the particular circumstances of the work assigned and is therefore not to be considered a precedent for future negotiations.

3.6 Designation of Principal Contacts

A law firm appointed as a legal agent may be required to designate individuals within the firm to function as principal points of contact. These may include:

  • Managing partner, with responsibility for the management of the business relationship between the firm and the Department of Justice, during the life of the appointment mandate;
  • Lead Litigator, with responsibility for the management of the legal team, during the life of the appointment mandate;
  • Administrative contact with responsibility for managing administrative activities and billing and payment issues on behalf of the firm, during the life of the appointment mandate; and,
  • Company security officer, with responsibility for coordinating security compliance requirements.

The requirement for the designation of principal contacts will be defined in the letter of appointment and/or statement of work, or through other instructions provided by the Instructing counsel during the tenure of the appointment.

3.7 Tenure of Appointment

A Legal Agent is appointed at the pleasure of the Attorney General of Canada. The appointment may be terminated at any time without prior notice.

3.8 Date of Appointment

The date on the Letter of Appointment is the effective date for the appointment of a Legal Agent, unless the Letter of Appointment specifies some other effective date.

3.9 Acceptance of Appointment

The Legal Agent must return a signed copy of the letter of appointment to the Instructing counsel within 30 days of receiving it. By signing the letter of appointment, the Legal Agent attests that he or she has read the Terms and Conditions, agrees to be bound by them and accepts the appointment. No accounts will be accepted or paid before the signed copy is returned.

3.10 Practice Profile

The Legal Agent must immediately disclose to the Instructing Counsel of any possible conflict of interest situations that exist at the time of appointment.Legal Agents must disclose if:

  • they are former federal public servants, or
  • they have received a special departure payment from the Government of Canada, such as an Early Retirement Incentive or Early Departure Incentive.

If so, they must be in compliance with the provisions of the Values and Ethics Code for the Public Service;See also Part Two, Conflict of Interest.

3.11 Termination of Appointment

An appointment terminates when the Legal Agent completes the required services in accordance with the appointment mandate and specified timelines, financial caps, etc.; when the legal agent resigns; or, on the date specified by a letter of removal from the Instructing Counsel.Further to the termination of an appointment, Legal Agents must return to the Instructing Counsel copies of all relevant training materials, instruction manuals, and any other documents, electronic files or paper files provided by the Department of Justice or other federal departments or agencies.

3.12 Proof of Appointment

The Department of Justice will provide proof of appointment if required under the Canada Evidence Act.

Part Four: Requirements

4.1 Employment Equity Requirements

The Department of Justice encourages a commitment to and implementation of the broad principles of employment equity in the workplace. Specific requirements differ depending on the size of a law firm and are outlined in the Department of Justice Workplace Equity Policy for Legal Agents

4.2 Security Requirements

In accordance with the Government Security Policy, all individuals who require access to sensitive federal government information and/or assets must have, as a minimum, a Reliability Status type security screening. All authorized counsel as well as members of their staff who will require access to Department of Justice files, must have, as a minimum, a Reliability Status type security screening. In certain circumstances or for special cases where access to Classified government information or assets will be required, legal agents and relevant members of their staff will require a higher level Security Clearance prior to being permitted such access.Records created during the conduct of assigned legal work are the property of the Department of Justice. In accordance with the Government Security Policy, Department of Justice file records must be properly secured at all times and they must only be accessible to personnel with the appropriate federal government security screening and/or security clearance.Security requirements are defined on a case-by-case basis. Legal agents must commit to ensuring compliance and cooperating fully with screening processes and procedures, and, obligations pertaining to the maintenance of active files and the return of closed files. Security requirements as well as supporting instructions and procedures may be defined through the letter of appointment and/or statement of work, as well as through instructions provided by the Instructing counsel during the tenure of the appointment .

4.3 Insurance

Legal Agents must carry law-practice insurance in the province or territory in which they practice in compliance with the requirements of the relevant law society or Bar Association.

4.4 Standard Technology Requirements

Legal agents may be required to communicate and transmit data in electronic format at their own cost. The use of specific document management software programs may be deemed mandatory. At a minimum, legal agents must commit to ensuring compliance with the computer hardware and software standards as defined through the letter of appointment and/or statement of work, or through instructions provided by the Instructing counsel during the tenure of the appointment.Where mandatory software programs are not defined, the Instructing counsel must be consulted prior to making use of software programs to ensure compliance with approved standards. 

4.5 Use of Technology: Best Practices

Legal agents are encouraged to use technology to streamline proesses and facilitate the sharing of information and documentation. Unless otherwise specified, legal agent firms must commit to adopting best practices as they relate to the use of technology:

  • The use of templates and automated document assembly applications for the preparation of pleadings, submissions, contractual and other documents;
  • The use of document management software programs for any matter that is document intensive (i.e., 100 documents or more);
  • The use of software programs designed to help manage and present cases effectively and to organize and analyze facts, issues and documents.
  • The use of standardized and automated procedures for the handling of recovery, litigation and transactional matters and to simplify and automate process relating to:
    • Calender management and tracking of key dates;
    • case and project management;
    • exchange of information between members of a legal team and Instructing counsel, as well as with other parties and their legal counsel and with other persons retained to assist with the transaction.
    • Document creation and generation

4.6 Reporting Requirements

Legal Agents must comply with case specific reporting and consulting requirements as established by the Instructing counsel. These requirements may be defined through the letter of appointment and/or statement of work, or through instructions provided by the Instructing counsel during the tenure of the appointment. Unless otherwise specified, a Legal Agent must:

  • advise the Instructing counsel of significant developments which might affect the Government's exposure or that might require changes to the case plan and budget. This information must be communicated no later than 7 days from the date on which the developments become known to the legal agent;
  • keep instructing counsel apprised on the status of pertinent matters and confirm or propose changes to case plan and budget;
  • obtain the consent of the instructing counsel prior to committing to a trial date. Once a trial date has been set, the legal agent and instructing counsel will jointly develop a case plan.
  • advise the instructing counsel promptly of any adverse decision or judgment so that a decision may be made with respect to an appeal and instructions provided as to the appropriate steps to take.
  • submit to the instructing counsel for approval, all settlement proposals or requests for settlement authority.

4.7 Billing Requirements

Legal Agents must comply with billing requirements as outlined in Part Nine of the Terms and Conditions and in accordance with case specific instructions as established by the Instructing counsel. These requirements may be defined through the letter of appointment and/or statement of work, or through instructions provided by the Instructing counsel during the tenure of the appointment.

4.8 Training / Reference Materials

The Department of Justice will provide Legal Agents with a copy of relevant policies and training materials developed by the Department relating to the work for which they have been appointed.These materials remain the property of the Government of Canada and must be returned to the Instructing Counsel upon request, or upon termination of the Legal Agent's appointment.

4.9 Participation in In-House Training

A legal agent may be required to participate in in-house training and selected meetings on substantive and administrative matters relating to their appointment. In such instances, the Department of Justice will reimburse associated out-of-pocket expenses incurred (such as meals, accommodation and transportation) in accordance with established travel allowances and standards. Time spent attending the training sessions and becoming familiar with training materials provided by the Department of Justice, is not billable time.

4.10 Family Support Obligations

In accepting an appointment, legal agents are required to certify that they are in compliance with any family support orders or obligations by which they may be bound.

Part Five: The Working Relationship

5.1 Point of Contact with the Department of Justice

The Instructing counsel is the Legal Agent's point of contact with the Department of Justice with respect to policy, legal, procedural, financial or billing issues and advice arising during the course of the appointment. Where necessary, the Instructing Counsel will seek further direction from the appropriate authorities within the Department of Justice in accordance with departmental practice.The name of the Instructing counsel will be identified in the Letter of Appointment. A legal agent may be required to designate individuals within the firm to function as principal points of contact, as described in section 3.6. Where applicable, all communications with the Department of Justice should be made in accordance with such designations.

5.2 Roles and Responsibilities of the Instructing Counsel

The Instructing counsel is responsible for instructing, monitoring and evaluating the work of the Legal Agent, ensuring that the Legal Agent is informed of pertinent departmental policies and providing advice and assistance when required. The responsibility for the verification of Legal agent accounts (with respect to the reasonableness of fees and disbursements) lies with or under the authority of the Instructing counsel.

5.3 Sharing Knowledge

Department of Justice counsel have extensive institutional and policy knowledge or legal expertise in particular areas. It is important to check with the instructing counsel as to who the appropriate Department of Justice representative(s) is/are to assist with useful insights or even prior products before initiating research.Legal agents are expected to access computer-based legal precedents, including forms and agreements, opinions and other resource materials, which may be resident in internal or external data banks.

5.4 Approval of the Instructing Counsel

Where, in accordance with the Terms and Conditions, the Legal Agent requires the approval of the Instructing counsel in order to proceed with an activity, the Legal Agent must obtain the approval, in writing, prior to proceeding. In rare situations, where circumstances warrant that the agent proceed with an activity without the prior written approval, the Legal Agent must notify the Instructing counsel about the situation at the earliest opportunity.

5.5 Communication with the Department of Justice

When communicating with the Department of Justice, Legal Agents may use the official language of their choice.

5.6 Correspondence with the Department of Justice

All letters to the Department of Justice must quote the Justice file number provided in connection with the particular matter as well as the Case and Billing Numbers identified in the letter of appointment. Sensitive or confidential correspondence or other similar material must not be sent by facsimile transmission except over secure lines approved by the Department of Justice.

Part Six: Information Management

6.1 Ownership of File Records

All documents or materials created during the conduct of work associated to a legal agent appointment, are the property of the Department of Justice.Ownership of the product of legal research, regardless of whether it is in the form of handwritten notes, an e-mail, or a memorandum of law (draft or formalized) resides with the Department of Justice. Legal agents must ensure that a copy of all work product is available in Departmental databases of legal work product.Legal Agents must comply with written procedures received from the Instructing counsel regarding the maintenance of active files and the return and archiving of closed files.

6.2 Security Requirements

In accordance with the Government Security Policy, Department of Justice file records must be properly secured at all times and they must only be accessible to personnel with the appropriate federal government security screening and/or security clearance.See Section 4.2 on Security Requirements and Government Security Policy.

6.3 Retaining, Archiving and Returning Records

All records created during the conduct of work associated to a legal agent appointment must be returned to the Department of Justice upon conclusion of the file and in accordance with the instructions provided by instructing counsel.

Department of Justice records in the possession of a legal agent shall only be destroyed further to written permission or instruction from instructing counsel.For audit purposes, it is suggested that Legal Agents retain financial information records, such as original timesheets and supporting disbursement documentation, for five years after closing the file.These procedures enable compliancy with the National Archives Act, the National Security Act and the Access to Information and Privacy legislation.

Part Seven: Release of Information

7.1 Confidentiality

Confidentiality is expected at all times. Members of legal agent firms may not discuss Department of Justice legal matters outside of the firm and with colleagues within the firm except as may be necessitated on a need-to-know basis by case strategy or to further the interests of the file.

7.2 Inquiries

It is the policy of the Department of Justice that only designated spokespersons release information to members of Parliament, media representatives or members of the general public. As a legal agent, you are not designated as such a spokesperson.

7.3 Duty to Notify

Where contacted by the media and/or receive a media inquiry, legal agents are required to immediately notify the Instructing counsel. The Instructing counsel will then determine and instruct as to the best course of action.Inquiries on routine matters, such as trial dates, do not need to be brought to the Instructing counsel's attention, unless the circumstances warrant it.

7.4 Initiating Media Contact

Other than on routine matters Legal Agents must not initiate contact with the media in respect of any matter arising in the course of their appointment without specific approval from the Instructing counsel.

7.5 Access to Information Matters

7.5.1 Legal Opinions

Legal Agents are not to provide legal opinions to law enforcement agencies or federal government departments regarding access to information requests. Any such request must be directed immediately to the Instructing Counsel.

7.5.2 Processing requests filed under ATIP legislation

The Access to Information and Privacy (ATIP) Office of the Department of Justice is responsible for processing all requests received by the Department under the Access to Information Act (ATIA) and the Privacy Act (PA). Subsection 4(1) of the ATIA gives individuals a right of access to records under the control of a government institution. Subsection 12(1) of the PA provides individuals a right of access to his or her “personal information” held by a federal government institution.Legal Agents records relating to Department of Justice matters are deemed to be under the “control” of the Department of Justice for the purposes of ATIA and PA. Legal Agents must submit all requested records to the Department of Justice Access to Information and Privacy Office in accordance with the instructions provided by the Instructing counsel. There is a strict 30-day statutory deadline under the ATIA and PA; therefore, Legal Agents must act promptly in response to the Instructing counsel's request.Legal Agents are not to provide any records to any other federal, provincial or municipal government institutions regarding ATIA or PA requests. Requests for such records should be directed immediately to the Instructing counsel. 

Part Eight: Performance Review

8.1 Practice Management Requirements

Legal agents are expected to commit to a “best-in-class” operating philosophy and strive to continuous improvement processes. Legal Agents should be prepared to streamline work processes and be innovative in managing work flow.A legal agent may be required to ensure that all members of the legal team as well involved members of their staff, arrange to receive a thorough orientation at the beginning of their work with the federal government, on a non-billable basis.Legal agents may be expected to monitor and communicate legislative and legal developments that could be of particular interest to the federal government. 

8.2 Performance Evaluation Criteria

The Department of Justice in constant search of value in products and services. As such, the Department seeks to work with legal agents who manage performance proactively.In order to ensure and maintain the high standard of service expected of Legal Agents of the Attorney General of Canada, the Department of Justice may conduct periodic performance evaluations. The performance review may have an influence on the continuation of a Legal Agent's mandate as well as on opportunities to be considered for future appointments. Performance evaluation criteria may include but not be limited to:

  • Ability for creative problem solving and technical excellence, which takes into account elements including :
    • Knowledge and negotiation skills
    • Understanding of our business
    • legal pragmatism and decisiveness
    • value-added and strategic thinking
    • willingness to recommend reasoned risks
    • ability to meet the strategy and objectives set out in the case plan
    • clarity and certainty in opinions and advice
  • Ability to respect case budget
  • Quality of supervision and delegation of work to appropriate resource levels
  • Appropriate use of and sharing of work product and of technology
  • Project management skills
  • Inter-personal skills
  • Oral and written communication skills
  • Innovation in advancing strategies (including settlements) to the advantage of the federal government
  • Ability to comply with:
    • Instructing Counsel's instructions;
    • Defined Terms and Conditions of appointment;
    • Department of Justice and federal government policies
  • Ability to deliver superior client services, which takes into account elements including:
    • Ability to inspire confidence;
    • Ability to meet defined expectations;
    • Attentiveness, accessibility and support;
    • Contribution to success;
    • Responsiveness to criticism

Performance evaluation criteria may be specifically and further defined in the letter of appointment and/or statement of work, or through instructions provided by the Instructing counsel during the tenure of the appointment.

8.3 Performance Monitoring

The Instructing counsel or another member of the Department of Justice reserves the right to communicate periodically with a legal agent to discuss satisfaction with service, price and results.

8.4 Audit of Records

The Department of Justice reserves the right to conduct periodic audits of all records created and maintained by a Legal Agent in the course of the appointment in order to ensure compliance with departmental policies and implementation of proper financial mechanisms and security requirements.The Legal Agent and the Legal Agent's firm are expected to comply fully with an audit.

Part Nine: Billing Practices

9.1 Billable Services

A legal agent may bill for the delivery of legal services which fall within the scope of their appointment mandate. Fees incurred in the delivery of legal services must only be claimed by authorized personnel and in accordance with the negotiated remuneration arrangement as defined in the letter of appointment.Legal agents are expected to comply with government spending principles of economy, efficiency and effectiveness, keeping in mind the need to balance the importance of the case to the Department of Justice or the concerned federal government department or agency with their professional responsibilities.

9.2 Non-Billable Services

No fees may be claimed for time spent educating associates, students, paralegals or technical.staff.No fees may be claimed for time spent in travel between the place of residence and usual place of business.Fees incurred as a result of services performed by staff members not specifically authorized to render services in accordance with an appointment mandate are not billable. This includes researchers, librarians, secretaries, administrative assistants, computer operators, bookkeepers, corporate and other records or document clerks or word processing operators.Time spent performing tasks that are administrative in nature and not “legal value-added input”, is not billable. Work of an administrative nature forms part of the Agent's overhead cost and may not, therefore, be charged as a separate item. Examples of administrative tasks include:

  • preparation of accounts
  • preparation of budgets
  • word processing
  • document processing
  • opening and closing files
  • sending and receiving facsimile messages

9.3 Daily Limit on Billable Hours

Claims for fees are subject to a daily maximum limit, as established in the letter of appointment. Fees claimed in excess of established limit, including travel time will not be allowed. Where circumstances change and/or warrant fees claimed in excess of the limit, prior written approval is required from the Instructing counsel.

9.4 Remuneration

A legal agent's remuneration is negotiated in the context of the particular circumstances of the assigned work and should not be considered a precedent for future negotiations. The negotiated remuneration is confirmed in the letter of appointment, and, claims for services rendered in accordance with the appointment mandate, should be submitted accordingly.

9.5 Work Performed by Articling Students and Paralegals

If authorized by the Instructing counsel, Legal Agents may employ paralegals and articling students to render services, in accordance with applicable law society or Bar rules. The rate of pay for services rendered by paralegals and articling students is established in the letter of appointment.

Paralegals and articling students are restricted to performing tasks or activities that require the application of legal skills, judgement and experience acquired by professional training and practice (“legal value-added” input). While Legal Agents may require paralegals and articling students to perform secretarial or clerical tasks, they cannot bill for the time spent performing administrative functions.

9.6 Disbursements

9.6.1 Principle

Legal Agents will be reimbursed at cost for all necessary and reasonable expenditures incurred in the delivery of mandated legal services. There are neither definitions nor limits as to what constitutes a necessary disbursement. Agents are, however, encouraged to respect the expenditure of public monies and the principles of economy, efficiency and effectiveness in the delivery of legal services.

9.6.2 Supporting Information

The letter of appointment establishes a dollar threshold for disbursements requiring proof of payment. Unless otherwise specified, the adopted practice requires that individually itemized claims for disbursements in excess of $25.00 must be supported by proof of payment. It is recommended that all un-submitted receipts (i.e., related to expenditures less than $25.00) be kept on file in the event they are required.

9.6.3 Significant Disbursement Costs

The letter of appointment establishes a dollar threshold for disbursements requiring prior written approval of the Instructing counsel. Unless otherwise specified, the adopted practice requires prior written approval from the Instructing counsel for all expenditures in excess of $500.00. Where claiming an expenditure for which prior written approval is required, a copy of the approval must support the claim.

9.7 Overhead Allocations

9.7.1 Office Supplies

Costs associated to office supplies including reusable materials such as binders, tabs, floppy disks, etc., and consumable supplies such as stationary, pens, etc., are not billable.

9.7.2 Telephone Service

Legal agents are expected to make use of fixed-pricing arrangements with telephone service providers. As such, unless otherwise negotiated and specified in the letter of appointment, minute-by-minute costs associated to local or long distance telephone calls cannot be claimed.

9.7.3 Facsimile Transmissions

Legal agents are expected to make use of fixed-pricing arrangements with communication service providers. As such, unless otherwise negotiated and specified in the letter of appointment, costs associated to local and long distance fax transmission will not be paid.

9.7.4 Rapid Communication

Legal agents are expected to make use of fixed-pricing arrangements with rapid communication service providers. As such, unless otherwise negotiated and specified in the letter of appointment, or approved in advance by Instructing counsel, costs associated to communication by telex, telegram, courier or other rapid communication mode will not be paid.

9.7.5 In-House Photocopying

Legal agents are expected to limit the use of photocopying and use electronic document exchange where appropriate. As such, unless otherwise negotiated and specified in the letter of appointment, or approved in advance by Instructing counsel, costs associated to the internal production of photocopies of documents will not be paid.

9.7.6 Postal Charges

Costs associated to the transmission of documents through Canada Post services will not be paid, unless otherwise negotiated and specified in the letter of appointment or approved in advance by the Instructing counsel.

9.7.7 Computer System / Internet Charges

Costs associated to maintaining and operating computer systems and ensuring access to Internet, will not be paid.

9.7.8 Computer Legal Research

Legal Agents are expected to make use of fixed-pricing arrangements with providers of on-line databases As such, unless otherwise negotiated and specified in the letter of appointment, or authorized in advance by Instructing counsel, costs associated to computer legal research time and expenses to access external data banks, will not be paid.

9.8 Miscellaneous Disbursements

9.8.1 Taxis

Legal Agents will be reimbursed for taxi costs incurred as a result of required travel in the context of the delivery of mandated services. Costs associated to travel between the place of residence and usual place of business will not be covered. Original receipts are required to support the claim regardless of the amount.

9.8.2 Court Filing Fees

Legal Agents will be reimbursed for court filing fees paid in accordance with established court schedules.

9.8.3 Expert Witness Costs

The term “expert witnesses” includes experts whose services are required solely for the purpose of litigation to prepare a report and give oral evidence in court or to provide technical assistance to counsel in the conduct of the litigation. The Instructing counsel must be consulted and written approval obtained, prior to engaging the services of expert witnesses.

9.9 Travel Claims

9.9.1 Principle

A claim for costs associated to travel, must be accompanied by the claim for the substantive work done on the file that necessitated the travel.Expenses incurred in connection with authorized travel for the purposes of official government business, such as mileage and meals, must be claimed in accordance with Travel Allowances established for legal agents, which are regularly updated to reflect Treasury Board standards. To determine the current Travel Allowances, agents should contact the Instructing counsel.

9.9.2 Travel Time

Where a Legal Agent is required to travel to a locality 16 kilometres or more from the agent's usual place of business, the time spent in travel between the two locations, by the most reasonable and economical means of transportation, is billable time.

Fees claimed in excess of the established daily maximum, including travel time incurred that day, will not normally be allowed.

9.9.3 Mileage

Where the use of a legal agent's private car is used for the purposes of travel, the Legal Agent may claim as a disbursement a fixed amount per kilometre in accordance with the established Travel Allowances. No claims for kilometres covered will be allowed for trips of less than 16 kilometres, one way, from the Agent's usual place of business.

9.9.4 Meals

Reimbursement for meals, in accordance with established Travel Allowances, will only be authorized if the Legal Agent is in authorized travel status.

9.9.5 Accommodation

Private accommodation required in connection with authorized travel for the purposes of official government business, must be claimed in accordance with Travel Allowances established for legal agents.

Commercial accommodation required in connection with authorized travel, should be arranged at a property and rate established for the use of the government employees and identified suppliers, and, outlined in the Public Works and Government Services Canada Accommodation and Car Rental Directory. For direction pertaining to commercial accommodations, agents should contact the Instructing counsel.

9.10 Goods and Services Tax (GST) and Harmonization Sales Tax (HST)

In this section, the term GST is interchangeable with the term HST.It is the Department's position that a legal agent's treatment of GST, in its bill for legal services, is based on fact and subject to the principles of law. The Excise Tax Act and the concept of agency govern this particular area, both of which could dictate different GST applications on certain transactions charged to the Department depending upon the circumstances.

A legal agent would normally present a bill for fees by totalling their fees and then adding GST.

All disbursements form a part of the services rendered, and thus are taxable according to the Excise Tax Act and the concept of agency. The specific types of disbursements and how to bill them are detailed below:

  • Disbursements for which the agent will receive an Input Tax Credit (ITC): The Agent claims the expense, subtracts out the ITC, and charges GST on the balance of the invoice.
  • Disbursements which are based on set rates or allowances: The Agent claims the expense and adds GST. For ease of reference, the Travel Allowances established for legal agents, indicate the allowances exclusive of GST.
  • Disbursements for which the agent will not receive an ITC: The Agent claims the amount paid and adds GST.

9.11 Exemption from Provincial Sales Tax

The federal government does not pay provincial sales tax on legal fees charged for the provision of legal services by legal agents.

Legal agents practicing in the Province of Québec, are provided with an exemption certificate for their signature in circumstances where the Quebec sales tax is not applicable.

Part Ten: Processing of Accounts

10.1 General

All work is entrusted to a legal agent on the basis that his/her account for services rendered is subject to examination or “taxation” by the Department of Justice and such verification will determine the remuneration to which a legal agent is entitled.

The Department of Justice reserves the right to re-assess payments, conduct post-payment audits or request additional supporting information from Legal Agents for up to five years after the file is closed.

10.2 Submission of Accounts

10.2.1 General

An itemized account must be submitted to the responsible Justice official for verification, in accordance with the instructions provided in the letter of appointment. It is important to ensure that each account refers to one file or piece of work assigned.

The frequency in which legal agents submit accounts must be in accordance with the instructions provided in the letter of appointment and/or statement of work. At the very least, agents should submit an account for all services rendered and disbursement costs incurred at the conclusion of the file.

The Federal Government fiscal year is from April 1st to March 31st of the next calendar year. Accounts must only include claims for services rendered and disbursement costs incurred during one fiscal year. All accounts (interim and final) must be submitted no later than April 10th of each new fiscal year for work performed in previous fiscal year, even if the work on the file is not yet complete.

10.2.2 Claims for Fees and Disbursements

A detailed description of activities performed and time spent on each activity should be itemized and recorded in chronological order.

All disbursements claimed must be itemized and recorded against the appropriate file on which the cost was incurred.Accounts should be submitted together with the reporting letters and any official files, reports, documents.

10.2.3 Request for Payment Form

The prescribed “Request for Payment” form, which is routinely provided with all agents under cover of an appointment letter, may be used when submitting accounts for services rendered and disbursement costs incurred further to an agent appointment. Civil legal agents have the option of using their firm's standard invoicing software provided all information required to complete the prescribed payment form is contained in all accounts.

10.2.4 Certification Endorsement

All accounts submitted must bear the following certification endorsement :I hereby certify that the services herein referred to were rendered by me or the members of the firm identified herein and this account truly shows the nature of the services rendered, the time occupied, the fees claimed, the disbursements made and all moneys received in this matter.

10.2.5 Case and Billing Numbers

A case and billing is created for each ad hoc appointment, to track the case information and associated costs. These numbers are conveyed to the legal agent by way of the letter of appointment and must be referenced in all relevant correspondence and accounts. If the Case Number and Billing Number are omitted or used incorrectly, the processing of the account may be delayed or the account returned to the Legal Agent for correction.

10.3 Verification of Accounts

The responsible Justice office will review an account for reasonableness, be ensuring such things as:

  • Compliance with the terms and conditions of appointment;
  • appropriate rates of remuneration have been applied;
  • all fees charged are reasonable and necessary in the delivery of the mandated legal services;
  • all activities have been properly itemized;
  • case and billing numbers are appropriately inscribed on the account;
  • all disbursements have been itemized and recorded against appropriate file;
  • all disbursements charged are reasonable and necessary, appropriately approved, and, supported by receipts as required;
  • all amounts have been correctly totalled;
  • GST/HST has been appropriately applied on fees and disbursements; and,
  • the account has been properly certified by the agent.

10.4 Payment

Following the verification process, “taxed” accounts are forwarded to a designated contact person within the department or agency responsible for payment under cover of correspondence confirming that the account has been reviewed by the Department of Justice and that payment should be issued in the specified amount.

A copy of this correspondence is sent to the Legal Agent as notification of the processing of the account.

10.5 Recovery

The Department of Justice reserves the right to re-assess payments, conduct post-payment audits or request additional supporting information from Legal Agents for up to five years after the file is closed.

Legal Agents are expected to fully co-operate with post payment audits and requests for information. Amongst other things, they will have to ensure complete access to all relevant file material, respond to all information requests and reimburse the Government of Canada any amount of money that is considered an over-payment as a result of an audit.

All monies owing to the Crown shall be remitted to the Department of Justice by cheque payable to the Receiver General for Canada. All such monies shall be remitted in full and not credited as payment on the agent's account.

10.6 Inquiries

All subsequent reminder notices or inquiries regarding the status of payment of an account are to be directed to the designated contact person within the department or agency responsible for payment. Where significant delays occur, and satisfaction is not obtained from the client contact, the Justice Instructing counsel's office should be contacted for assistance.

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