Frequently Asked Questions - Policy on Legal Assistance and Indemnification
To whom does the Policy on Legal Assistance and Indemnification apply?
The Policy on Legal Assistance and Indemnification applies to individuals appointed pursuant to legislation or a statutory authority who, as public office holders, have an employment relationship with the Crown. The Policy also applies to representatives authorized in writing to act on behalf of a serving prime minister, minister or deputy head. For the purposes of the Policy, the individuals covered by the Policy are 'Crown servants'.
The Policy no longer applies to Directors and Officers of Crown Corporations as they are now covered by the new Indemnification and Advances Regulations for Directors and Officers of Crown Corporations under section 119 of the Financial Administration Act.
For the definition of 'Crown servant', please refer to section 4.1 of the Policy.
Does the Policy apply to volunteers?
Volunteers engaged by departments or agencies do not fall under the definition of Crown Servant in the Policy. Accordingly, separate arrangements for indemnification coverage should be considered.
This Policy does, however, cover Crown servants undertaking volunteer activities at the direction of their supervisors or as required in the normal course of their duties, e.g. federal representatives on a Workplace Charitable Campaign, First-Aid attendants providing first-aid services on a voluntary basis through departmental Occupational Health and Safety Services.
Does the Policy apply to casual workers, students and part-time workers?
When casual workers, students or part-time workers are employed by an organization pursuant to the Public Service Employment Act, they are considered Crown servants, and would be eligible for coverage under the Policy.
Does the Policy apply to contractors or consultants?
No, contractors and consultants are engaged through a contract for services, therefore they are not eligible for coverage. The Contracting Policy governs all contracts for services.
Does the Policy apply to Governor-in-Council appointees working for organizations that are not covered under the Policy?
The Policy would apply to Governor-in-Council appointees working for organizations not covered under the Policy, but employees of such organizations may not be covered.
Are Crown servants on outside assignments (e.g. Interchange Canada) covered by this Policy?
For Crown servants on Interchange Canada assignments, the host organization should provide the participant with similar coverage, including legal assistance and indemnification while they are on assignment. Should the host organization not agree to indemnify the participant, he/she may risk personal liability unless some other arrangement is made.
As the employee on Interchange Canada assignments remains a Crown servant, the home department may provide for legal assistance for the employee if the host organization has not made arrangements.
Are members of advisory committees or board members eligible for coverage under this Policy?
A member of an advisory committee or board may be eligible if he/she is:
- appointed by the Governor-in-Council;
- appointed by the deputy head pursuant to a statutory authority; or
- if they are an individual employed in a department either appointed pursuant to the Public Service Employment Act or through an employment contract.
If, however, members are engaged under a contract for services, or if they are serving the advisory committee or board of directors as a volunteer, then they would be ineligible (see policy subsection 6.1.11).
Members could be covered by their own professional insurance (in the case of physicians, lawyers, etc) or other coverage that they arrange at their own expense or as a reimbursable expense.
How is eligibility for coverage under the Policy determined?
An individual is generally eligible to request legal assistance and indemnification if he/she meets the definition of Crown servant under Policy section 4.1 and either:
- meets the three basic eligibility criteria set out in 6.1.5 of the Policy (i.e. acted in good faith, acted within the scope of duties or in the course of employment and did not act against the interests of the Crown); or
- meets the two criteria set out in 6.1.9 of the Policy for appearances before parliamentary proceedings, commissions of inquiry, inquests or other judicial or quasi-judicial bodies with powers similar to a court of law (i.e. matter concerns events where the Crown Servant was acting within scope of his/her duties or in the course of employment, and its considered in the public interest for the person to appear); or
- meets the exceptional circumstances requirements (i.e. Crown servant does not meet one of the three basic criteria but approval authority considers that it would be in the public interest to approve the request); and
- the individual is facing personal liability in a situation described in 6.1.6. of the Policy.
What does it mean when the Policy states that "Crown servants are initially to be given the presumption in favour of having met the basic eligibility criteria"?
This Policy statement means that the operative presumption is that Crown servants are to be given the benefit of the doubt regarding whether his/her actions meet the basic eligibility criteria, unless or until there is information to the contrary. However, if it becomes apparent that the Crown servant did not act in accordance with the basic eligibility criteria or that he/she did not comply with the other relevant requirements of the Policy, the approval authority may at any time terminate assistance and request repayment of funds disbursed.
How is "acting in good faith" determined?
If the Crown servant has acted honestly and without malice in trying to carry out his/her duties and was not acting against the interests of the Crown in his/her actions, then he/she is likely to be considered to have acted in good faith.
What does "acting within the scope of duties or in the course of employment" mean?
If, at the time of the act or omission giving rise to the request, the Crown servant was performing duties that either form part of his/her work description or other activities sanctioned by management or the organization, then it is likely he/she will be found to have acted within the scope of his/her duties or course of employment.
What does "acting contrary to the interests of the Crown" mean?
The interests of the Crown include any rights, privileges, powers or immunities the Crown may have. "Acting contrary to the interest of the Crown" may include, but is not limited to, any wrongdoing. Examples of wrongdoings may include a contravention of any law; the misuse of public funds or a public asset; gross mismanagement in the public sector; a serious breach of a code of conduct; an act or omission that creates a substantial and specific danger to the life, health or safety of persons, or to the environment; and knowingly directing or counseling a person to commit a wrongdoing.
Who should a Crown servant approach in his/her organization if he/she requires legal assistance or indemnification?
The Crown servant should inform his/her immediate supervisor or some other representative of management within the organization, of the matter at the earliest possible opportunity and make a request for coverage to the approval authority in their organization. Appendix A of the Policy provides a full list of approval authorities.
May approval authorities delegate their authority to approve or deny requests?
Approval authorities may not delegate this authority, except for the Prime Minister who may delegate his/her authority to a designated alternate.
What if a Crown servant requires coverage under this Policy for a situation that occurred while he/she was employed in another organization?
The Crown servant must make the request for coverage under the Policy to the approval authority in the organization in which the act or omission giving rise to the request first arose.
What should be included in the request for legal assistance and indemnification? Can it be done orally?
Requests should be made in writing. For information on what to include in the written request, please refer to Appendix B of the Policy, entitled Requests by Crown Servants.
What are the employee's responsibilities should he/she need to request legal assistance and indemnification?
An employee is responsible for informing the employer of the matter at the earliest reasonable opportunity after the incident occurred; making a written report to the departmental approval authority and authorizing legal counsel from the Department of Justice or any approved counsel engaged to defend the Crown servant and/or the Crown.
When is a Crown servant authorized to engage private counsel under the Policy?
A Crown servant should not engage private counsel until after the appropriate approval authority has decided to approve or deny the request. A Crown servant who instructs counsel to begin work without the requisite approval may be personally responsible for payment of the resulting legal fees, costs and judgment.
Approval for private counsel will only be given where it is appropriate, such as in circumstances where there is a potential conflict of interest between the Crown and the Crown servant or when the Crown servant is charged with an offence. Otherwise, and this will be the case in most civil cases, the Department of Justice will provide the legal assistance, either through a Department of Justice counsel or a private counsel retained as an agent of the Attorney General.
Who is responsible for selecting and instructing counsel and determining the amount of coverage for legal fees?
The Minister of Justice is responsible for selecting and instructing counsel and determining the amount of coverage for legal fees. All billing inquiries must be directed to the Department of Justice. In the case where individuals are represented by private counsel, the Department of Justice will provide advice on the quantum of assistance to be provided.
If a Crown servant engages private counsel prior to receiving approval for legal assistance, is there any provision allowing for retroactive compensation under the Policy?
The approval authority may authorize legal assistance retroactively in circumstances where it was practically unreasonable to get approval in advance and where the need for legal services was immediately necessary to protect the Crown servant's interest. In these cases, the Crown servant must make the request for approval as soon as possible thereafter. It should be noted that in order for the request to be approved, the Crown servant still needs to meet the basic eligibility criteria under the Policy.
When requests for legal assistance are denied, is recourse available?
A Crown servant may lodge a grievance against the decision made by the deputy head to deny the request for legal assistance. Should the grievance be denied at the final level, the griever may apply to the Federal Court for a judicial review of the decision.
In the case of a denial of assistance based on failure to meet the eligibility criteria, the Crown servant may subsequently reapply for legal assistance or indemnification when a court or tribunal has finally concluded its proceedings and new evidence or information has demonstrated that the basic eligibility criteria were, in fact, met (this may be the case when the Crown servant has been found to be not guilty of criminal charges). Such a situation does not automatically entitle the Crown servant to the reimbursement of expenses that have previously been denied. In such circumstances, approval authorities must seek the advice of the Advisory Committee on Legal Assistance and Indemnification before confirming or changing the original decision (see question 30 for more information on the Advisory Committee on Legal Assistance and Indemnification).
Can a Crown servant still be eligible for coverage under the Policy if he/she does not meet the basic eligibility criteria?
The Policy permits approval authorities to approve legal assistance and indemnification in exceptional circumstances where a situation does not fall within the basic eligibility criteria, but only when it is in the public interest to do so. These situations must first be presented to the Advisory Committee on Legal Assistance and Indemnification. Further, the approval authority may terminate assistance if at anytime it becomes apparent that the exceptional circumstances leading to assistance proves to be invalid.
If a Crown servant requires access to legal assistance for a matter related to the Public Servants Disclosure Protection would he/she be covered by this Policy?
Requests for legal assistance regarding investigations conducted under the Public Servants Disclosure Protection Act would be denied since these are internal investigations which are deemed to be ineligible requests under the Policy.
However, under the Public Servants Disclosure Protection Act, the Public Sector Integrity Commissioner has the discretion to provide legal advice and cover costs of some legal advice - see subsection 25.1 (1) of the Public Servants Disclosure Protection Act for the relevant circumstances and conditions.
If harassment allegations are made against a Crown servant will he/she be eligible for coverage under the Policy?
As per subsection 6.1.11 of the Policy, requests made for internal investigations or internal administrative recourse mechanisms are deemed to be ineligible requests. Therefore, harassment allegations do not lead to eligibility for coverage for legal assistance under the Policy since there is an internal process for handling harassment complaints.
However, in circumstances where a harassment complaint lodged under the Policy on Harassment Prevention and Resolution is determined to be unfounded, but is then pursued in the courts or a Tribunal (e.g. the Canadian Human Rights Tribunal), the respondent may apply for legal assistance under the Policy.
If a Crown servant wants to request payment or reimbursement as a result of a monetary out-of-court settlement of a claim or an action made or brought against himself/herself, how are these requests processed?
All settlements must be pre-approved by the approval authority based on a recommendation of the Department of Justice. Therefore, the Crown servant must request payment or reimbursement from the approval authority who in turn seeks the Department of Justice's recommendation before approving the request. Only once the approval authority has approved the request can payment be made. For the purposes of threshold limits identified in Appendix A of the Policy, the settlement should be treated as a request for indemnification.
Which costs are covered under the Policy and who bears the costs?
Costs that are covered would be for legal counsel fees supplied by the Department of Justice or private counsel (when approved by the Department of Justice), as well as paralegal services, necessary counsel travel costs and the use of expert witnesses. Costs are covered by the organization in which the act or omission giving rise to the request first occurred, or from the budget of the successor organization. Should there be no successor, then the Clerk of the Privy Council will determine from which budget the expenses should be paid.
It should be noted that costs incurred by the Crown Servant related, for example, to travel, hospitality, meals, etc., are not covered under this Policy.
How long should it take before a response to a request for coverage under the Policy is received?
Departments are to ensure timely responses to Crown servants' requests under the Policy due to the nature and sensitivity of requests. It may take longer to process requests where the approval authority needs to consult with the Advisory Committee on Legal Assistance and Indemnification.
How can an applicant avoid creating a conflict of interest when obtaining legal representation?
Under certain circumstances, a conflict of interest can arise where the interests of the Crown and the Crown servant must be separated and cannot be represented by the same Legal Counsel. For this reason, the Policy allows for the use of private legal assistance in cases where there is a demonstrated conflict of interest or where the Crown servant is charged with a criminal offence. The Department of Justice will determine the appropriateness of engaging private counsel and if recommended, will review the fee schedule proposed by private counsel.
Are Crown Servants who are subpoenaed as witnesses covered by this Policy?
Crown Servants appearing as witnesses in enquiries or other proceedings do not require requesting legal assistance through the Policy. Legal advice is provided as a matter of course, if necessary, in each department or agency.
What is the mandate of the Advisory Committee on Legal Assistance and Indemnification?
The mandate of the Advisory Committee on Legal Assistance and Indemnification is to provide advice:
- in exceptional circumstances where the Crown servant does not meet one or more of the three basic eligibility criteria but where the approval authority considers that it would be in the public interest to approve the request;
- when eligibility is being reconsidered by the approval authority where a court or tribunal has finally concluded its proceedings and new evidence or information has demonstrated that the basic eligibility criteria were met; and
- in complex situations when requested by the approval authority.
Are approval authorities obligated to take the advice of the Advisory Committee on Legal Assistance and Indemnification?
The role of the advisory committee is to provide advice to approval authorities on complex cases. The advice / recommendation is not binding since the approval authority remains accountable for the decision taken.
Who are the members of the Advisory Committee on Legal Assistance and Indemnification?
This committee has a cross-representation of organizations which are covered by the Policy. Members are typically senior executives that have experience in the interpretation of the Policy and are well qualified to provide advice and recommendations to approval authorities.
When an approval authority seeks the services of the Advisory Committee on Legal Assistance and Indemnification, how should he/she proceed?
The approval authority or the Minister (see Appendix A of the Policy) must send a written request to the Chair of the Advisory Committee requesting advice from the Committee and the reasons for the request, along with sufficient information on the circumstances of the case and contact information for someone from their organization who will arrange for a representative to present the case to the committee. Any documentation that is submitted with the request should be marked as 'protected' and in most cases any personal information should be removed.
How soon can the approval authority expect a response from the Legal Assistance and Indemnification Advisory Committee?
Requests for legal assistance are treated as a priority, as such the Committee makes every effort to convene as quickly as possible in order to promptly provide a response.
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