Terms and Conditions of Appointment for Domestic Legal Agents
8. Employment Equity
The Department encourages legal agents to respect its Workplace Equity Policy for Legal Agents, which promotes respect for, commitment to, and implementation of the principles of employment equity by law practitioners appointed as legal agents of the AGC. The legal agent commits to communicating its commitment to respect the Department's workplace equity principles to all staff within the firm or, in the case of individual agents, to all staff in the firm with whom the legal agent works directly.
9. Official Languages
The legal agent must be able to communicate in the official language of the other party to any legal proceedings before a federal court, in accordance with the Official Languages Act. It is the general policy of the Department that pleadings before a provincial or territorial court should be in the official language of the other party whenever possible.
The legal agent should consult instructing counsel immediately should assistance be required to respect the official languages obligations of the Department.
10. Information Management
10.1 Retaining, Archiving and Returning Records
The Department must retain litigation files and advisory files for a period of twelve years from the date final action has taken place, and real property files for a period of twenty-five years. The legal agent must therefore comply with written procedures received from instructing counsel regarding the maintenance of active files, and the return, archiving or destruction of closed files, subject to law society requirements.
The Department's records in the possession of a legal agent must only be destroyed further to written permission or instruction from instructing counsel.
10.2 Parliamentary, Media and Other Inquiries
Only designated spokespersons release information to members of Parliament, media representatives or members of the general public. The legal agent is not a de facto spokesperson unless otherwise authorized in writing by the instructing counsel.
Where contacted by the media or when in receipt of a media or parliamentary inquiry, the legal agent must immediately notify the instructing counsel. Instructing counsel will then determine and instruct as to the best course of action according to the specific circumstances of the case. The legal agent is not required to bring inquiries on routine matters such as trial dates to instructing counsel's attention unless the circumstances warrant it.
The legal agent must not initiate contact with the media in respect of any matter arising in the course of its appointment without specific approval or instructions from instructing counsel. Anything the legal agent says should be considered 'on the record' and may end up in the public domain. Therefore, the legal agent must exercise the same care and attention when dealing with anyone seeking information through social media, and not just traditional media outlets.
10.3 Access to Information Requests
The Access to Information and Privacy (ATIP) Office of the Department 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.
Legal agent records relating to the Department's matters are deemed to be under the "control" of the Department for the purposes of ATIA and PA. Where the Department is required to respond to an access to information request, the legal agent must submit all requested records to the Department of Justice ATIP Office in accordance with the instructions provided by instructing counsel. There is a strict 30-day statutory deadline under the ATIA and PA; therefore, the legal agent must respond promptly to the Department's request, and within the requested timelines.
The legal agent must not directly respond to ATIA or PA requests made by any other federal, provincial or municipal government institutions. Requests for such records must be directed immediately to the instructing counsel.
The legal agent must not 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.
11. Proactive Disclosure
The legal agent consents to the public disclosure of information related to its appointment as a legal agent, including billing information. If any authorized counsel is a former public servant in receipt of a pension pursuant to the Public Service Superannuation Act, the legal agent agrees that this information will be reported on the Department's website as part of the published proactive disclosure reports.
12. Ownership of File Records
All documents or materials created during the conduct of work associated with a legal agent appointment are the property of the Department.
Ownership of the product of legal research, legal analysis or legal opinion, 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.
13. Remuneration and Billing
13.1 Remuneration Arrangement
The specific legal agent remuneration is detailed in the letter of appointment and is subject to the provisions set out below. The remuneration arrangement is negotiated for each appointment, in the context of the particular circumstances of the work in question, and should not be considered a precedent for future appointments.
13.2 Billable Services
The legal agent must bill for the delivery of legal services which fall within the scope of its appointment mandate. The legal agent must only claim fees incurred in the delivery of legal services by authorized personnel and in accordance with the negotiated remuneration arrangement, as defined in the letter of appointment.
The legal agent must respect the government spending principles of economy, efficiency and effectiveness, keeping in mind the need to balance the importance of the case to the Department or the concerned federal government department or agency, with its professional responsibilities.
13.3 Non-Billable Services
The legal agent must not claim fees incurred as a result of services performed by staff members not specifically authorized to render services in accordance with the appointment mandate. 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", is not billable. The legal agent is not permitted to charge as a separate item, work of an administrative nature. Examples of administrative tasks include:
- preparation of accounts and proposals;
- preparation of budgets;
- word processing;
- document processing;
- opening and closing files;
- sending and receiving facsimile messages; and
In addition, the Department will not reimburse the legal agent for the following:
- discussions that occurred and work that was performed prior to the effective date of the appointment;
- internal conferences or consultation (unless value added);
- educating associates, students, paralegal or technical staff;
- unnecessary attendance of multiple lawyers at meetings;
- preparation of unnecessary multiple drafts of documents; and
- overtime for secretarial and administrative staff.
13.4 Internal Printing and Photocopy Costs
The legal agent must limit the use of photocopies, and use electronic document exchange to the extent feasible. The legal agent will not be reimbursed its laser printing costs, or reimbursed for photocopies where copies are made for internal purposes. The legal agent will, however, be reimbursed at cost for photocopies required for external purposes related directly to the case, so long as the cost does not exceed the rates ordinarily charged by commercial printing companies.
13.5 Daily Limit on Billable Hours
Claims for fees are subject to a daily maximum limit of ten hours, unless otherwise specified in the letter of appointment or authorized by instructing counsel.The Department will not accept fees claimed in excess of the established limit, including travel time.
13.6 Work Performed by Articling Students and Paralegals
The legal agent may employ paralegals and articling students to render services, provided the use of those resources is set out in the letter of appointment or subsequently approved by the Department, and provided that the work conducted by those resources is in accordance with applicable Law Society rules. The rate of pay for services rendered by paralegals and articling students must be in accordance with the letter of appointment.
Paralegals and articling students must be 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"). While the legal agent may require paralegals and articling students to perform secretarial or clerical tasks, it cannot bill for time spent performing administrative functions. Also, the legal agent must not claim fees for time spent educating associates, students, paralegals or technical staff.
13.7.1 Third-Party Services
In the performance of its mandate, the legal agent may contract under its own capacity, work of a non-legal nature with third-party service providers. In entering into any such contracts, the legal agent must make it clear to the third-party service provider that the contract is between the legal agent and the service provider and not between the Crown and the service provider.
The Department will treat expenditures related to the delivery of third-party services as disbursements. The legal agent will be reimbursed at cost, without any allowance for profit and/or administrative overhead, for all necessary and reasonable disbursements incurred in the delivery of the mandated legal services, subject to the conditions found in the following sections. In incurring such expenditures, the legal agent should be guided by the principles of economy, efficiency and effectiveness in the spending of public funds.
13.7.2 Conditions for Reimbursement
Unless otherwise specified in the letter of appointment, the legal agent must obtain the prior written authorization of instructing counsel for all disbursements in excess of $2,000.00.Footnote 2 This threshold does not apply to disbursements relating to the services of expert and material witnesses or to travel, all of which require prior written authorization regardless of dollar value, before booking travel or retaining experts and/or witness.
Where claiming an expenditure for which prior written authorization of the Department is required, the legal agent must provide a copy of the authorization to support the claim, along with a copy of the invoice from the third-party service provider, from the expert or the witness.
13.7.3 Court Filing Fees
The Department will reimburse the legal agent for court filing fees paid in accordance with established court schedules.
13.7.4 Travel and Living
The Department will reimburse the legal agent for authorized travel and living expenses reasonably and properly incurred in the performance of the work, at cost, in accordance with the meal, private vehicle and incidental expenses provided in Appendices B, C and D of the National Joint Council Travel Directiveand with the other provisions of the directive referring to "travellers", rather than those referring to "employees", and in accordance with Section 7 of the Treasury Board Special Travel Authorities directive.
The legal agent must seek the prior authorization of instructing counsel to travel. The legal agent must provide an estimation of anticipated travel costs to instructing counsel when seeking authorization. When making travel arrangements, the legal agent must consider the most reasonable and economical means of transportation.
The legal agent must seek the lowest available airfares appropriate to particular itineraries, and must make bookings as far in advance as possible to benefit from optimal seat pricing.
The legal agent must consult the Public Services and Procurement Canada Accommodation and Car Rental Directory when making hotel reservations or renting a vehicle, reference http://rehelv-acrd.tpsgc-pwgsc.gc.ca/index-eng.aspx.
The legal agent must ensure that claims for travel costs are accompanied by the claim for the substantive work done on the file that necessitated the travel.
13.7.5 Travel Time
Where the legal agent is required to travel at the request of Canada, the time spent in travel between the two locations, by the most reasonable and economical means of transportation, is billable time at a rate that should not exceed 50% of the approved counsel rate, unless the legal agent is able to work on the file while travelling, in which case the approved rates can be applied.
Taxis, shuttles and local transportation services are alternatives for short local trips. The Department will reimburse the legal agent for actual expenses, so long as they are supported by receipts, regardless of the amount claimed. The Department will not reimburse the legal agent for costs associated with travel between the place of residence and usual place of business.
Where the legal agent's private car is used for the purposes of travel requested by Canada, the Department will permit the legal agent to claim as a disbursement a fixed amount per kilometre in accordance with the allowances set out in the National Joint Council Travel Directive.
13.7.8 Regular Mail and Courier Charges
The legal agent will not be reimbursed the costs associated with the transmission of documents through regular mail.The legal agent will be reimbursed courier costs.
13.7.9 Non-Billable Expenses
Despite that the following costs may have been or may be reasonably and properly incurred by the legal agent in the performance of the mandate, they are considered non-applicable costs for purposes of the appointment:
- Bar fees and insurance premiums;
- personal expenses while on travel on behalf of the government, e.g. in-room movies, dry-cleaning, etc.;
- subscription costs to access legal research databases and other on-line resources;
- rental of office space necessary for the effective delivery of the required legal services;
- costs associated with office supplies including reusable materials such as binders, tabs, computer media, etc., and consumable supplies such as stationery, pens, etc.;
- minute-by-minute costs associated with local or long distance telephone calls or facsimiles;
- costs associated with maintaining and operating computer systems and internet access;
- meal costs, unless incurred while on pre-approved travel status; and,
- interest or late charges incurred by the legal agent.
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