Archived [2008-09-01] - Policy on the Indemnification of and Legal Assistance for Crown Servants

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1. Effective date

This policy is effective June 1, 2001. It replaces the Policy on the Indemnification of and Legal Assistance for Crown Servants of May 6, 1998 that replaced the Policy on the Indemnification of Servants of the Crown and the Policy on the Provision of Legal Assistance to Crown Servants.  The purpose of revising the  policy at this time is to implement consequential amendments required by the revised Policy on the Prevention and Resolution of Harassment in the Workplace of June 1, 2001.

Appendix D approved July 16, 2004, retroactive to February 10, 2004, provides for specific application of this Policy in relation to a judicial proceeding, Parliamentary proceeding and Commission of Inquiry into the Sponsorship Program and Advertising Activities established February 19, 2004 under Part I of the Inquiries Act related to the 2003 Report of the Auditor General.

This current policy applies to indemnification and legal assistance requested on or after the effective date regardless of when the act or omission that prompted the indemnification or legal assistance took place.

2. Preface

  1. This policy reflects the Crown's recognition that, as an Employer, it should indemnify its servants and protect them from certain financial costs arising from the performance of their duties. Deputy heads and designated officials are authorized to approve indemnification of and legal assistance for Crown servants on the advice of the Department of Justice Canada. Generally, the Department of Justice Canada or a Justice agent will provide the legal assistance. However, when this is inappropriate (e.g. a conflict of interest between the Crown and the servant or when the servant is charged with an offence), this policy provides the authority to approve payments to private counsel for legal assistance.
  2. This policy consolidates and clarifies two previous policies that dealt with indemnification of servants of the Crown and provision of legal assistance to Crown servants (part of the Real Property, Materiel and Risk Management group of Treasury Board policies). In addition, it sets out an approval process for the indemnification of and legal assistance for former and serving prime ministers, ministers, deputy heads and ministers' exempt staff.

3. Policy objectives

To indemnify Crown servants' liability to the Crown and to third parties as well as to provide legal assistance where appropriate.

To protect the Crown's interests and its potential or actual liability arising from the acts or omissions of its servants.

4. Policy statement

  1. Provided the Crown servants acted honestly and without malice within their scope of duties or employment and met reasonable departmental expectations, it is government policy:
    1. to indemnify Crown servants against personal civil liability so incurred;
    2. to make no claim against servants based upon such personal liability; and
    3. to authorize the approval authority identified in section 7.2 to indemnify Crown servants;
    4. to authorize the approval authority identified in section 7.2 to provide legal assistance to Crown servants in the following circumstances:
      • when they are required to appear before or be interviewed in connection with a judicial, investigative, or other inquest or inquiry;
      • when they are sued or threatened with a suit;
      • when they are charged or likely to be charged with an offence; or
      • when they are faced with other circumstances that are sufficiently serious as to require legal assistance.
  2. In extenuating circumstances, where the situation does not fall within the basic policy criteria as stated in section 4(a), it is government policy to authorize the approval authority identified in section 7.2 to determine the extent to which servants may be indemnified or receive legal assistance subject to the financial limitations noted in section 7.2(c) of this policy.
  3. It is government policy not to provide legal assistance for claims or actions that Crown servants initiate. Prior approval of the Treasury Board is required for any exception to this policy.
  4. It is government policy not to apply this policy to the obligations of the Crown servant with respect to the care, custody or control of money, or the application of Chapter 38 of the Queen's Regulations and Orders for the Canadian Forces.
  5. It is government policy to reserve the right, notwithstanding this policy, for the Crown to discipline a servant with respect to an incident that is the subject of a claim or charge.
  6. It is government policy that if a complaint of harassment filed under the Policy on the Prevention and Resolution of Harassment in the Workplace is determined at the departmental level to be unfounded, and is pursued in the courts or at a tribunal, the respondent's department/organization will provide legal assistance to the respondent who works for a department or organisation listed in Schedule I, Part I of the Public Service Staff Relations Act.

5. Application

This policy applies to Crown servants as defined in section 6 of this policy and to departments and departmental corporations as defined in section 2 of the Financial Administration Act, the Canadian Forces and the Royal Canadian Mounted Police. For the purpose of legal assistance provided under section 4(f) the policy only applies to departments and organizations listed in Schedule I, Part I of the Public Service Staff Relations Act.

6. Definitions

For the purposes of this policy, the following definitions apply:

Crown servant (fonctionnaire de l'État) – includes:

  1. individuals employed (or formerly employed) by a department, the Canadian Forces and the Royal Canadian Mounted Police;
  2. individuals appointed (or formerly appointed) by the Governor in Council, any minister or deputy head;
  3. former and serving prime ministers, ministers, deputy heads and ministers' exempt staff;
  4. a representative authorized by and acting on behalf of individuals mentioned above; and
  5. the estate of an individual mentioned above;

but excludes:

  1. any person engaged under a contract for services, with the exception of ministers' exempt staff; and
  2. any person appointed or employed by or under the authority of an ordinance of the Yukon Territory or the Northwest Territories.

Deputy head (administrateur général) – includes deputy head equivalents. In addition, for approval authority only, the deputy head includes the deputy head's delegate.

Legal assistance (services juridiques) – includes paralegal services as long as those services have been authorized by the Department of Justice Canada.

Ministers' exempt staff (personnel exonéré) – any individual appointed by a minister or a secretary of State pursuant to section 39 of the Public Service Employment Act, or under a contract for services with terms and conditions analogous to those individuals appointed pursuant to section 39.

7. Policy requirements

7.1 Notification

  1. In order to be entitled to obtain indemnification, and to be eligible to receive legal assistance, a Crown servant must:
    1. inform the employer of the matter at the earliest reasonable opportunity after the servant becomes aware of a possible or actual claim or proceeding as a result of any alleged act or omission within the scope of the servant's duties or employment;
    2. make a complete report to departmental management of the incident leading to the requirement for indemnification or legal assistance; and
    3. upon request by the employer, authorize the Attorney General, or anybody designated by the Attorney General, to defend their action using the appropriate forms as set out in Appendix A.
  2. In order to obtain legal assistance referred to in section 4(f), the respondent of a complaint of harassment that was determined to be unfounded at the departmental level must
    1. inform the employer at the earliest reasonable opportunity after he or she becomes aware that the complaint is pursued in a court or tribunal; and
    2. upon request by the employer, authorize the Attorney General, to defend the action using the appropriate forms as set out in Appendix A.

7.2 Authorization

  1. Deputy heads have the authority to approve indemnification and the provision of legal assistance that is provided by the Department of Justice Canada or private counsel. For indemnification and legal assistance intended for former and serving ministers, including prime ministers, deputy heads and ministers' exempt staff, the approval level identified in section 7.2(d) is to be obtained.
  2. Except for legal assistance referred to in section 4(f), the approval authority, or authorized delegate, can only authorize legal assistance at public expense when it has been determined that the servant acted honestly and without malice within his or her scope of duties or employment and met reasonable departmental expectations. This criterion applies initially at the time of the request for legal assistance and during the ensuing proceedings.

    The determination that the servant acted honestly and without malice within his or her scope of duties or employment and met reasonable departmental expectations should be made by departmental officials before legal counsel meets with the servant. This determination is required in order to avoid precluding the Department of Justice Canada counsel from providing future legal advice to the department due to the fact that the servant would have provided information in confidence that could result in a conflict of interest situation for the Justice counsel.

  3. Where a situation occurs that does not fall within the basic criteria for indemnification (i.e. that the servant acted honestly and without malice within his or her scope of duties or employment and met reasonable departmental expectations) nor under section 4(f) and there are extenuating circumstances, the appropriate approval authority may determine the extent to which a servant may be indemnified and may receive legal assistance. In this case and where the approval authority is the deputy head, the full amount of the indemnification, including legal assistance costs, must not exceed $25,000 subject to section 7.3.4. Where the full amount exceeds $25,000, Treasury Board approval is required. Where the approval authority is other than the deputy head (i.e. the Prime Minister, Clerk of the Privy Council or Treasury Board), the designated authority will have full authority.
  4. Special approval levels are required to cover indemnification and legal assistance provided by the Department of Justice Canada or private counsel for former and serving ministers, including the prime minister, deputy heads, or ministers' exempt staff. The estates of these individuals are also subject to these approvals. The approval authorities are as follows:
    1. for ministers, the approval authority is the prime minister;
    2. for deputy heads and equivalents, the approval authority is the Clerk of the Privy Council or delegate;
    3. for ministers' exempt staff, the approval authority is the Treasury Board.

Note:

Under no circumstances is legal assistance to be authorized for claims or actions initiated by Crown servants.

A summary of the appropriate approval authorities is provided in Appendix C.

7.3 Conflict of interest, private counsel and other legal assistance

7.3.1 Advice to be sought

  1. Before approving a request for legal assistance, the approval authority must seek the advice of the Department of Justice Canada on the need for legal counsel and legal assistance, and on the appropriateness of the source of this assistance – either a counsel of the Department of Justice Canada, a Department of Justice Canada agent or, if relevant, private counsel or other person providing the legal assistance.
  2. In certain cases, such as possible conflict of interest, the Attorney General could either decline to appoint counsel to act on behalf of a servant or instruct counsel to discontinue so acting whether or not, under this policy, legal assistance has been authorized or the servant is or may be entitled to be indemnified.
  3. When the Department of Justice Canada determines that there is a conflict of interest, or where the servant is charged with an offence, the servant may be authorized to engage private counsel or to seek other legal assistance.

7.3.2 Instructing counsel

  1. In any claim or proceeding, the Attorney General of Canada has the authority to select and instruct counsel to conduct the defence on behalf of the servant. Such counsel shall, to the greatest extent possible consistent with counsel's obligation to protect the interests of the Crown, treat all communications with the servant in confidence. The Crown will not use information so disclosed in confidence by the servant in any disciplinary or civil action against the servant.
  2. The name and fee schedule of private counsel or other legal assistance must always be approved by the Attorney General of Canada before proceeding in such cases.

7.3.3 Servant's personal responsibility

  1. In civil cases, servants must state in their request whether they are willing to have the Department of Justice Canada defend them. A servant who prefers to be represented by private counsel shall state the reasons for the preference and provide the name and fee schedule of the preferred counsel. Private counsel shall not be retained until the appropriate approval authority has approved the request. A servant who instructs counsel to begin work without the requisite approval is personally responsible for payment of the resulting legal fees.
  2. Where the approval authority is not satisfied that the choice of counsel is reasonable, the servant should be asked to provide another preference. Alternatively, the servant may choose to retain the counsel originally selected, in which case he or she will be personally responsible for any part of the fee deemed excessive by the approval authority.
  3. When a servant has chosen to engage private counsel and, in the opinion of the Department of Justice Canada, there is no conflict of interest or other factor preventing the conduct of the defence by the Department of Justice Canada, the payment of legal fees, costs, and any judgement are the servant's own responsibility. If the employing department feels that there are extenuating circumstances, it may make a submission to the Treasury Board for partial or full reimbursement.

7.3.4 Costs of private counsel

  1. In cases where private counsel is to be engaged, basic policy criteria are met and the approval authority is the deputy head, the deputy head may authorize the payment of legal fees and disbursements to such counsel to a maximum of $10,000 including the cost of travel pursuant to the Treasury Board Travel Directive. Subject to section 7.2(c), the approval of the appropriate minister must be obtained to exceed this limit with respect to any one servant in any one incident, or before any fee in excess of $1,200 per diem may be paid. If there is a reasonable expectation that the process will be lengthy with legal costs regularly requiring departmental review and ministerial approvals, and if the legal rates have been approved by the Minister, individual ministerial approvals of each charge over the maximum amounts noted is not required. Measures to ensure the Minister is regularly informed of the status and costs of the process are to be implemented.

    With respect to private counsel intended for former and serving ministers, including prime ministers, deputy heads and ministers' exempt staff, approval of the appropriate authority as outlined in section 7.2(d) must be sought.

  2. An authorization to pay all or part of a servant's expenses for private counsel is to be in writing and is subject to the following conditions:
    1. the servant's selection of counsel is to be approved, in accordance with this policy, before counsel is engaged;
    2. the department is to inform the servant and the selected counsel in writing of the limits of the Crown's commitment, in terms of both total expenditures and approved fee schedules, and of the requirement for reviewing accounts by the Department of Justice Canada;
    3. in cases involving offences, payment by the Crown shall not include any fine or costs of prosecution; and
    4. if, at any time during the proceedings, it is determined that a servant who has received legal assistance was not acting within his or her scope of duties or employment at the time the act or omission for which the legal assistance was provided took place, legal assistance is to cease and any assistance provided is to be recovered. It is therefore necessary to ensure that servants are aware of, and accept, this condition before the legal assistance is provided. This reimbursement process applies to all legal assistance provided, not just the costs of private counsel.

7.3.5 Stages of the judicial process

For each stage of the judicial process or for any significant change in the circumstances related to the case, a new request for payment of legal fees must be made and assessed in accordance with the considerations set out in section 7.3. Servants who instruct counsel to begin work on a subsequent stage of the process without proper approval may be personally responsible for the resulting legal fees.

7.4 Counsel provided by the Department of Justice Canada

In civil cases, the Department of Justice Canada will, in most instances, assume the provision of legal assistance including the conduct of the litigation, either through a departmental legal adviser or a private lawyer retained as an agent of the Attorney General. In these circumstances, the Minister of Justice, rather than the servant, will have ultimate responsibility for selecting and instructing counsel. In cases where two or more servants are sued in the same action, normally the same counsel will conduct their defence.

7.5 Source of funds

It is the practice of the government to pay out of public funds any judgement, including costs, against the servant as long as the servant is entitled to indemnification under this policy.

Indemnification and legal assistance costs are to be paid from the budgets of the organization in which the person worked at the time the incident(s) occurred. If the organization no longer exists, the organization that continues to carry out the responsibilities related to the act or omission for which indemnification and legal assistance have been required should bear the financial costs.

7.6 Ex gratia payments

Legal assistance is not to be approved or paid as an ex gratia payment. The policy on ex gratia payments does not permit the use of the ex gratia payment process when other policies apply to the situation. Thus, should circumstances arise where the provision of legal assistance seems appropriate but is not possible within the provisions of this Policy on the Indemnification of and Legal Assistance for Crown Servants, an exception to this policy is to be requested from the Treasury Board.

8. Responsibilities and entitlement

  1. Departments are responsible for ensuring that servants are aware that they must inform their supervisors whenever an incident takes place that may result in a claim against the Crown and may give rise to the need for legal assistance. Departments are also to ensure that servants receive timely advice on their potential protection under this policy.
  2. All Crown servants may apply for legal assistance. They are not, however, necessarily entitled to receive that assistance except for legal assistance referred to in section 4(f). The merits of the situation, and the degree to which the circumstances meet the criteria of this policy will be considered by departmental management in deciding whether or not to approve legal assistance.
  3. A servant who has been denied legal assistance may ask for reconsideration of the request at subsequent stages of any legal proceedings. However, an acquittal in offence cases, or dismissal of a civil suit, does not entitle the servant to reimbursement of legal fees and expenses that have been denied.
  4. A decision to provide legal assistance to a servant, regardless of the outcome, does not preclude the employing department from taking any disciplinary action deemed appropriate.

9. Monitoring

Departments are to maintain records of the actual amounts of damage claims; of territorial, provincial and federal court awards paid by the Crown; and of actual amounts paid in legal fees and related expenses in the application of the policy. This policy will be monitored in accordance with the Risk Management Policy.

10. References

10.1 Authority

This policy is issued pursuant to section 7 of the Financial Administration Act.

10.2 Treasury Board of Canada Secretariat publications

This policy should be implemented within the context of risk management. Refer to the Risk Management group of Treasury Board policies available through the Treasury Board of Canada Secretariat web site at http://www.tbs-sct.gc.ca/

The manual Administrative Practices – Guidelines for Ministers' Offices may assist those persons who are involved in answering questions related to indemnification and legal assistance for ministers and ministers' exempt staff.

11. Enquiries

Enquiries about this policy should be directed to the responsible officers in departmental headquarters. Often, departmental Legal Services units are well-equipped to respond to questions on this policy. Departmental Legal Services units may consult with Treasury Board Legal Services and, in turn, departmental headquarters' officials may seek interpretations from:

Office of Public Service Values and Ethics
Public Service Human Resources Management Agency of Canada
Telephone: (613) 954-4039
Facsimile: (613) 941-5311


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Appendix A – Authorization forms

Option 1

I,          (name)          , of the   (city/town/township)   , of      (name of city)    
in the   (province/territory)   of  (name of province/territory)  , Defendant in an action commenced in the (Court or Tribunal) wherein    (name of organization)    is Plaintiff, hereby authorize the Attorney General of Canada, or such other person as may be designated by the Attorney General or a delegate thereof, to defend the action on my behalf and to take such actions and conduct such proceedings as the Attorney General may consider necessary to defend such action on my behalf and to protect the interests of the Crown.

DATED at      (location)      , this  (date)  day of   (month)   , A.D.,  (year)  .

Option 2

I,          (name)          , of the   (city/town/township)   , of      (name of city)    
in the   (province/territory)   of  (name of province/territory)  , hereby authorize the Attorney General of Canada, or such other person as may be designated by the Attorney General or a delegate thereof, to defend the (claim or proceeding) of                          against me based upon (describe the allegations or other basis of claim) and to take such actions and conduct such proceedings as the Attorney General may consider necessary to defend such (claim or proceeding) on my behalf and to protect the interests of the Crown.

DATED at      (location)      , this  (date)  day of   (month)   , A.D.,  (year)  .

Option 3

I,          (name)          , of the   (city/town/township)   , of      (name of city)    
in the   (province/territory)   of  (name of province/territory)  , Crown servant, hereby authorize the Attorney General of Canada, or such other person as may be designated by the Attorney General, or a delegate thereof, to defend the action against me by                      in the                      Court,                      Division
(Court File No.            ) and to take such actions and conduct such proceedings as the Attorney General or counsel designated to represent me may consider necessary to defend the action on my behalf and to protect the interests of the Crown. In this regard, I expressly waive solicitor.client privilege in favour of the Crown and the following co.defendant(s) who is/are also represented by the Attorney General of Canada,      (insert name(s))      , and I agree to a mutual sharing of material information with the Crown (and between these co-defendants). I understand, however, that counsel representing me will treat all communications between us in confidence to the extent possible consistent with counsel's obligation to protect the interests of the Crown. Where information provided by me in confidence is disclosed in the interests of the Crown, it is subject to the condition that it shall not be used by the Crown in any disciplinary or civil action against me.

I have been informed, and I understand, that I have the right to terminate this retainer at any time and to retain and instruct private counsel at my own expense. I have further been informed, and I understand, that should a conflict arise between my interests and those of the Crown (or any of the co-defendant(s) named above) at any time during this litigation, it will be necessary for me to retain private counsel. I am aware that, in that event, I may apply for approval to retain private counsel at public expense under the Treasury Board Policy on the Indemnification of and Legal Assistance for Crown Servants.

DATED at      (location)      , this  (date)  day of   (month)   , A.D.,  (year)  .

Acknowledgement form

I have been provided with a copy of the Treasury Board Policy on the Indemnification of and Legal Assistance for Crown Servants. I have read the policy and understand that I will be indemnified for personal civil liability incurred by reason of any act or omission within the scope of my duties or employment only if I acted honestly and without malice.

Appendix B – Guidelines on the provision of legal assistance

Considerations in the provision of legal assistance

Approval authorities should bear in mind the following:

  1. The servant must have been acting honestly and without malice within the scope of his or her duties or employment and met reasonable departmental expectations (i.e. engaged in carrying out an act or function authorized by the employing department or similar in character to acts or functions previously authorized or carried out). Unless there are extenuating circumstances, no legal assistance at public expense is authorized for a servant who has clearly stepped beyond the scope of assigned duties.
  2. Servants should be informed that the costs of legal assistance paid by the Crown will be recovered from the servant should it be determined during the course of the proceedings that the servant was not acting within his or her scope of duties or employment or in the case of respondents identified in 4(f)  where the court or tribunal found that the harassment complaint was founded. Servants must understand and agree to this. This applies regardless of any initial authorization of the legal assistance.
  3. In certain circumstances, the Crown, as the Employer, may be vicariously liable for the actions of its servants. This potential liability may justify the expenditure of public funds to ensure that the defence is appropriately carried out.
  4. Failure to assist servants who have been placed at risk in the performance of their duties may lead to reluctance on the part of other servants to expose themselves to similar risks. In such circumstances, defence of the servant at public expense may be necessary for the efficient operation of the program concerned.

Considerations in the selection of private counsel

  1. It is possible that in some cases a conflict may arise between the interests of the Crown and those of the servant, or between the interests of two or more servants who are co-defendants. When, in the opinion of the Department of Justice Canada, such a conflict exists, it will be necessary for the servant(s) to retain and instruct outside counsel. For example, the Department of Justice Canada does not defend servants who have been or may be charged with a federal offence for the following reasons. When servants are charged with a federal offence, their personal interest in the outcome is such that they must be free to select legal counsel in whom they have confidence, and to instruct that counsel as they see fit. Unlike civil claims, where this policy provides for payment out of public funds of a judgement against a public servant, the consequences of a criminal prosecution are personal and must be borne by the servant. When representing servants in a criminal prosecution, counsel must be able to receive instructions from that individual regardless of whether they are in harmony with government instructions, policies or wishes. The services the lawyer provides are thus to the individual and not to the government. In addition, the fact that the Crown, whether in right of Canada or of a province, conducts the prosecution could be perceived as giving rise to a conflict of interest should the Crown, through the Department of Justice Canada, also conduct the defence.
  2. Before authorizing the provision of private counsel at public expense, including legal assistance referred to in section 4(f), the approval authority should be satisfied that the choice of counsel is reasonable given the circumstances. The following are considered reasonable criteria for selecting private counsel:
    • counsel should reside in the area where the proceedings will be conducted;
    • senior counsel should not be requested for minor charges; and
    • the fee schedule proposed should be reasonable in terms of lawyer's experience and seniority. The Department of Justice Canada maintains a schedule of fees for this purpose, and can advise on the appropriateness of the fees.

Appendix C – Summary of approval authorities for indemnification and legal assistance

For former and serving: Indemnification to be approved by: Legal assistance provided by Department of Justice Canada to be approved by: Legal assistance provided by Private Counsel to be approved by:
Crown Servants+
(when basic policy criteria are met and respondents under 4(f))
Deputy Head Deputy Head Deputy Head
(up to a total of $10,000 or a fee up to $1,200 per diem)

Minister
(over $10,000 or fee over $1,200 per diem)
[policy reference 4(a)and (f)]     [policy reference 7.3.4]
Crown Servants+
(when basic policy criteria are not met and there are extenuating circumstances)
Deputy Head
(up to a total of $25,000 *)

Treasury Board
(over $25,000)
Deputy Head
(up to a total of $25,000 *)

Treasury Board
(over $25,000)
Deputy Head
(up to $10,000 or fee up to $1,200 per diem to a limit of $25,000 *)

Minister
(from $10,000 to $25,000 or fee over $1,200 per diem to a limit of $25,000 *)

Treasury Board
(over $25,000)
[policy references 4(b) and 7.2(c)] [policy reference 7.2(c)] [policy reference 7.2(c)] [policy references 7.2(c) and 7.3.4]
Ministers (including prime ministers) Prime Minister Prime Minister Prime Minister
Deputy Heads Clerk of the Privy Council Clerk of the Privy Council Clerk of the Privy Council
Minister's exempt staff Treasury Board Treasury Board Treasury Board

+ excluding prime ministers, ministers, deputy heads and ministers' exempt staff

* $25,000 threshold applies to the combined total of indemnification and legal assistance costs

Appendix D – Specific application of this Policy in relation to a judicial proceeding, Parliamentary proceeding and Commission of Inquiry into the Sponsorship Program and Advertising Activities established February 19, 2004 under Part I of the Inquiries Act related to the 2003 Report of the Auditor General, retroactive to February 10, 2004

This Appendix, through its specific provisions, applies only in relation to the context specified above.  The Policy on the Indemnification of and Legal Assistance for Crown Servants continues to apply in the context specified above for all matters not explicitly covered in this Appendix.

Scope and Authority

  1. This appendix applies in respect of a judicial proceeding, Parliamentary proceeding or Inquiry under Part I of the Inquiries Act related to the 2003 Report of the Auditor General and is retroactive to February 10, 2004.
  2. The President of Treasury Board, or an alternate of his or her choosing, is the approval authority under section 7.2(d) for ministers and former ministers, and ministers' exempt staff and former exempt staff in relation to these proceedings.   For all other Crown Servants the approval authority is as set out in the body of the Policy.
  3. For the President of Treasury Board, or exempt staff or former exempt staff who reported to the President of Treasury Board during the period of time of interest to the proceedings, the approval authority is the minister identified as acting for the President of the Treasury Board in the Order in Council "PMO  - Appointment of Acting Ministers." as issued from time to time.

    Legal Assistance and costs

  4. Where the approval authority grants a request for indemnification or approves legal assistance, and determines that engagement of private counsel is warranted in the circumstances, or where recommended by the Department of Justice in the cases where there is a conflict of interest, the Crown servant may be authorized to engage private counsel.
  5. Where legal assistance costs have been incurred prior to a decision on indemnification and approval of legal assistance, the approval authority may determine the extent to which the Crown Servant may be indemnified and receive legal assistance.  In this case, the approval authority will take into account the recommendation of the Department of Justice as to the legal assistance rates and costs to be paid on behalf of the Crown Servant.  For more certainty, the approval authority may determine the amount of the legal assistance to be provided regardless of the maximum amounts or thresholds set out in the body of the Policy.
  6. The approval authority may determine the extent to which a Crown Servant may be indemnified or receive legal assistance where engagement of private counsel is deemed to be warranted in the circumstances.  The approval authority will take into account the recommendations of the Department of Justice as to the legal assistance rates and costs, which are to be paid by the responsible department on behalf of the Crown Servant.   For more certainty, the approval authority may determine the amount of the legal assistance to be provided regardless of the maximum amounts or thresholds set out in the body of the Policy.
  7. Where the approval authority has indemnified or approved legal assistance for a Crown Servant, the approval authority may at any time, based on evidence tendered before a proceeding or as a result of inquiries by the Crown or information obtained by the Crown, revisit the decision to provide legal assistance if the approval authority determines that the Crown Servant was not acting within the scope and course of his or her duties or employment with respect to matters for which legal assistance was requested.  The approval authority may also consider whether to recover any or all sums that may have been paid under the provisions of this Policy.