Policy on Legal Assistance and Indemnification

Frequently Asked Questions

General

1. When did the Policy on Legal Assistance and Indemnification come into effect?

   This policy took effect on September 1, 2008 and replaced the Policy on the Indemnification of and Legal Assistance for Crown Servants of June 1, 2001.
    

2. To whom does the policy apply?
   

   The Policy on Legal Assistance and Indemnification applies to Crown servants as defined in section 4 of the policy:

   • an individual employed (or formerly employed) in a department as defined in section 2 of the Financial Administration Act (FAA), in an entity listed in Schedule IV of the FAA, in the Canadian Forces and the Royal Canadian Mounted Police;
   • an individual appointed (or formerly appointed) by the Governor in Council (GIC), or by the Treasury Board or by a Minister;
   • a former and serving prime minister, lieutenant-governor, governor general, minister, deputy head and minister’s exempt staff;
   • a representative authorized in writing to act on behalf of a serving prime minister, minister or deputy head;
   • an incoming participant or former incoming participant in a program under the Policy on Interchange Canada; or
   • an estate of an individual mentioned above.
      

3. What is the Policy on Legal Assistance and Indemnification about?

   Crown servants are involved in all types of work, including law enforcement and national defence, where completely proper conduct can attract liability or legal actions because of incidents that arise related to their duties. The policy, therefore, is about:

   • protecting Crown servants from personal financial losses or expenses incurred while they were acting within the scope of their duties or in the course of their employment, and not against the interests of the Crown;
   • protecting the Crown’s interest and its potential or actual liability arising from the acts or omissions of its Crown servants; and
   • ensuring continued and effective public service to Canadians - ensuring good public policy decisions are made without fear of personal liability.
      

4. How is eligibility for coverage under the policy determined?

   If the individual meets the definition of Crown servant under policy section 4.1 and meets the three basic eligibility criteria: 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, then he/she would be generally eligible to apply for assistance/indemnity.
    

5. What does it mean when the policy refers to the principle that the Crown servants are to be given the initial presumption in favour of having met the basic eligibility criteria?

   The operative presumption is that Crown servants are given the benefit of the doubt in applying the policy is that the actions of a Crown servant adhere to the basic eligibility criteria unless or until there is information to the contrary. However, if at any time, it becomes apparent that the Crown servant did not act in accordance with the basic eligibility or that he/she did not comply with the other requirements of the policy, the approval authority may terminate assistance.
    

6. 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 function as a Crown servant, then he/she likely will have acted in good faith.
    

7. What does “acting within the scope of duties or in the course of employment” mean?

   If, at the time 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 should be found to have acted within the scope of his/her duties or course of employment.
    

8. What does “acting contrary to the interest of the Crown” mean?

   The interest of the Crown includes 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 as defined by section 8 of the Public Servants Disclosure Protection Act (PSDPA), that is: 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.
    

9. If a Crown servant is subject to an internal investigation or internal administrative recourse mechanism, are they eligible for coverage under this policy?

   Investigations internal to the operations of the public service, such as a disciplinary process, or an internal administrative recourse mechanism, such as a grievance process, are not covered under the policy.
    

10. If a Crown servant requires access to legal advice for a matter related to the Public Servants Disclosure Protection Act (PSDPA) would he/she be covered by this policy?

    Requests for legal advice under the PSDPA would be considered an internal process and therefore would generally not be granted. However, under the PSDPA, the Public Sector Integrity Commissioner has the discretion to provide legal advice - see Section 25.1 (1) of the PSDPA for the circumstances and conditions.
     

11. If harassment allegations against a Crown servant are brought forward to the Canadian Human Rights Tribunal will she/he be eligible for coverage under the policy?

    Yes, since the Canadian Human Rights Tribunal has similar powers to a court of law, the Crown servant would be covered under the policy if she/he meets the three basic eligibility criteria. However, investigations by the Canadian Human Rights Commission are usually not covered by the policy.
     

12. Who should a Crown servant turn to in the organization if she/he requires coverage under this policy?

    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 revised policy provides a full list of approval authorities, their authority levels and the Crown servants for whom they are responsible.
     

13. 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.
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14. When should a Crown servant engage private counsel?

    A Crown servant should refrain from engaging private counsel until after the appropriate approval authority has decided on 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.
     

15. If a Crown servant engages private counsel prior to receiving approval for legal assistance, is there any provision allowing for 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.
     

16. Are participants in the Interchange Canada or Fellows Program covered by this policy?

    Incoming participants accepting an Interchange Canada or Fellow’s Program assignment are covered. Former incoming participants are also covered.
    
    For Crown servants going out on assignment, the host organization is expected to provide the participant with similar coverage including legal services and should indemnify them while on assignment. Should the host organization not agree to indemnify the participant, he/she may be subject to the risk of personal liability.
     

17. What if a Crown servant disagrees with a decision made under this policy?

    An adverse decision can occur either because of a non-respect of the policy’s request and approval process or of a failure to meet the eligibility criteria.
    
    In the case of a non-respect of the request and approval process, the policy clearly states that the applicant must inform his/her supervisor at the earliest reasonable opportunity, make a fully factual account of the incident at hand, and refrain from engaging private counsel until the request to do so has been approved. Failure to observe these conditions can result in a Crown servant being partially or fully responsible for resulting legal fees, costs and judgement.
    
    In the case of a failure to meet the eligibility criteria and where a Crown servant’s request has been denied, the Crown servant may subsequently reapply for legal assistance or indemnification only where a court or tribunal has finally concluded its proceedings and new evidence or information has demonstrated that the basic eligibility criteria were met.
     

18. Can a Crown servant still be covered by the policy if he/she does not meet the basic eligibility criteria?

    The policy permits approval authorities to provide 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 be first reviewed by 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 proved invalid.
     

19. What is the mandate of the Legal Assistance and Indemnification Advisory Committee?

    The mandate of the Legal Assistance and Indemnification Advisory Committee 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
    • when requested from the approval authority in complex situations.
       

20. Who will be on the Legal Assistance and Indemnification Advisory Committee?

    The Advisory Committee on Values and Ethics, a senior level advisory committee chaired by the Office of the Chief Human Resources Officer, has agreed to take on the functions of the Legal Assistance and Indemnification Advisory Committee. This committee will have a cross-representation of organizations covered by the policy and its members are well qualified to provide advice and recommendations to approval authorities.
     

21. If a Crown servant is refused coverage under the policy, and subsequently, a judgment is rendered in his/her favour, can legal costs be covered?

    Such a situation does not automatically entitle the Crown servant to reimbursement of expenses that have previously been denied. Subsequent evidence would have to demonstrate that the policy’s eligibility criteria did indeed apply. Approval authorities must seek the advice of the Advisory Committee on Legal Assistance and Indemnification before confirming or changing the original decision.
     

22. 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 need to be pre-approved by the approval authority based on the Department of Justice Canada’s recommendation. So the Crown servant needs to request payment or reimbursement from the approval authority who in turn requires 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.
     

23. Are volunteers covered by this policy?

    Volunteer activities covered by the Volunteer Policy do not fall under the ambit of the LAI policy.
    
    This policy, however, does cover Crown servants undertaking volunteer activities at the direction of their supervisors or as required in the normal course of their duties e.g. being the federal representative on a Workplace Charitable Campaign or First-Aid attendants providing first-aid services on a voluntary basis under the Treasury Board Occupational Health and Safety Directive.
     

24. What costs are covered by the policy?

    Costs that are covered include the cost of services supplied by the Department of Justice or private counsel when approved by the Department of Justice as well as paralegal services, necessary travel costs and the use of expert witnesses.
     

25. Does the policy cover casual workers, students and part-time workers?

    When casual workers, students or part-time workers are employed by an organization, they are considered Crown servants, and are covered under the policy.
     

26. Are contractors covered under the policy?

    No, as contractors are engaged using a ‘contract for services’, they are not covered. The exceptions to this are Minister’s exempt staff. The Policy on Decision Making in Limiting Contractor Liability in Crown Procurement Contracts governs all contracts for services.
     

27. If a Crown servant is of the opinion that his/her character has been defamed and wishes to initiate a legal action. Can he/she apply under this policy?

    Generally speaking, Crown servants are not covered if they wish to initiate the action unless it is in the interest of the Crown to do so.
    
    If the Crown servant feels that he/she has been defamed from actions undertaken during the course of his/her lawful responsibilities as a Crown servant, he/she should first inform his/her immediate supervisor of the situation so that the organization can assess whether it is in the Crown’s interest to support the action. The Crown may initiate an action if it forms part of a defence with respect to a broader claim, action or charge.
     

28. Does the policy make it mandatory for Crown servants to collaborate with a parliamentary proceeding, a commission of inquiry, an inquest or other similar proceeding?

    The policy is intended to encourage Crown servants to collaborate with parliamentary proceedings, commissions of inquiry, inquests or other similar proceedings so as to ensure a continued and effective service to Canadians. Nevertheless, in certain circumstances, a Crown servant may be compelled to testify in such proceedings. The policy will apply as long as it is in the public interest to have a Crown servant appear and the matter concerns events where the Crown servant was acting within the scope of his or her duties or in the course of employment.
     

29. When a request is made for legal assistance, how long should it take before a response is received?

    Departments are to ensure there are timely responses to Crown servants’ requests under the policy. Therefore organizations are to develop an internal system to deal with each request in a timely manner.
     

30. If a Crown servant agrees to be represented by a Department of Justice legal counsel, can this create a conflict of interest between the Federal government and the individual?

    Under certain circumstances, a conflict of interest can arise. 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 proposed fee schedule.

    Transition:

     

31. If a Crown servant is currently being provided legal assistance under the provisions of the previous Indemnification and Legal Assistance Policy. Will this assistance continue?

    Yes, he/she will continue to receive assistance, and will do so under the terms of the previous policy in accordance with the approval decision.
     

32. If a request was made under the previous policy and denied, could the Crown servant make another request under the new policy?

    If the request was denied because the approval authority determined that the Crown servant did not meet the eligibility criteria, then, as the new policy’s eligibility criteria remain relatively the same, it would be highly unlikely that a previously denied request would render a different decision. However, if a previously denied request is resubmitted under the revised policy, it should be reconsidered and determination be made on a case by case basis.
     

33. What if a Crown servant submitted a request under the previous policy but it has yet to approved or denied, would the approval authority use the previous or revised policy to make her/his decision?

    If a request was made under the previous policy but the approval authority has not responded to the request, the request should be decided upon using the policy that is in force at the time of decision. Depending on the request, a new request may not be necessary, as the eligibility criteria remain relatively the same.