Legal Services

Table of contents

• Defining the Activity
• Relationship to Other GVTs
• Business Processes
• Retention
• Business Value and Retention Recommendations
  1. Legal Advice and Oversight
  2. Preparation of Legal Documents
  3. Litigation Services
  4. Legislative Drafting

How to use this tool

• This tool is designed for IM specialists to use with relevant business areas when identifying information resources of business value (IRBV) and retention specifications.
• The IRBV and retention specifications contained in this document are recommendations only and should be customized to apply in each institutional context. The complete document should be read before using any recommendations.
• This Generic Valuation Tool does not provide Government of Canada institutions with the authority to dispose of information. Generic Valuation Tools (GVT) are not Records Disposition Authorities (RDA) and do not replace the Multi-Institutional Disposition Authorities (MIDA).

Validation: The business processes and IRBV of this GVT have been validated by subject matter experts from the following departments: lawyers and information management staff from the Department of Justice (JUS).

Defining the Activity

According to the Treasury Board of Canada Secretariat Profile of Government of Canada (GC) Internal Services, Legal Services involve “activities undertaken to enable government departments and agencies to pursue policy, program and service delivery priorities and objectives within a legally sound framework” and “the provision of policy and program advice, direction in the development and drafting of the legal content of bills, regulations, and guidelines; assistance in the identification, mitigation and management of legal risks; legal support in ensuring compliance and enforcement of standards, regulations and guidelines; and representing the Crown’s interests in litigation.” ^Footnote1

Legal Services are also identified by the Treasury Board of Canada Secretariat Common Services Policy as a common service of the Government of Canada (GC), which includes “providing legal advice, preparing legal documents, drafting legislation, regulating or conducting litigation, and overseeing all legal mechanisms used to achieve the overall objectives of the government.” ^Footnote2

The Department of Justice Act identifies the Minister of the Department of Justice as the Attorney General of Canada and, as such, ascribes him or her with the responsibility to advise the heads of departments on all matters of law. ^Footnote3

Pursuant to this Act, the Common Services Policy identifies the Department of Justice (JUS) as the common service organization (CSO) responsible for providing Legal Services to GC institutions. Further, the policy states that institutions listed in schedules I, I.I, and II of the Financial Administration Act “must use these services for their requirements unless they are exempted by the Treasury Board or granted the necessary delegation of authority from the CSO.” ^Footnote4 A GC institution not listed in the schedules above may enter into an agreement with JUS for the provision of Legal Services; however, it is not obliged to do so.

Organizationally, some institutions have created permanent units to support legal matters, while others rely on staff closely linked to or knowledgeable of a given situation. Moreover, the type of unit that manages Legal Services may vary from one institution to another. For example, institutions:

• frequently assign responsibility for legal matters to organizational units responsible for developing corporate policies or strategies;
• often involved in litigation may have a litigation support office;
• often involved in establishing or modifying regulations may have an office that deals exclusively with this activity.

Relationship to Other GVTs

Business processes often overlap. When the IRBV for a sub-activity is also identified in another GVT, there is a note in the table of IRBV and retention recommendations (below) to direct the user to the proper tool.

It should be noted that information resources of business value and retention recommendations related to the provision of legal training and seminars are addressed in the GVT for Human Resources Management Services under the Employee Performance, Learning, Development and Recognition sub-sub-sub-activity.

Business Processes

The business processes herein were defined according to a variety of policy instruments and contextual documents produced by JUS, Privy Council Office (PCO) and Treasury Board of Canada Secretariat (TBS).

Insofar as JUS is the primary provider of Legal Services, the business processes herein were first defined in reference to a number of JUS policies and contextual documents including:

• The Service Standards for the Provision of Legal Services in Government
• The Template Memorandum of Understanding (MOU) between the Department of Justice and XXX (Name of Department or Agency)
• The accompanying User’s Guide to the Memorandum of Understanding between the Department of Justice and Federal Government and Agencies for the Provision of Legal Services. ^Footnote5

The definitions contained in the latter documents form the basis of agreements with some 60 GC institutions for the provision of these services.

The business processes were also influenced by a number of PCO ^Footnote6, TBS ^Footnote7 and JUS ^Footnote8 guidelines and directives that regulate or explain legislative and regulatory creation or modification. The Statutory Instruments Act and the Statutory Instruments Regulations, which govern the creation of regulations, were also examined in detail, as were various requirements that also govern the institutions’ obligations during litigations, including the Evidence Act and guidelines on accounting for contingent liabilities. ^Footnote9

The Legal Services sub-sub-activity has five sub-sub-sub-activities, with a number of associated business processes. For the purposes of this GVT, the Legal Advice and Legal Oversight have been combined.

1. Legal Advice and Oversight:

Includes requesting and receiving legal opinions, risk analyses, and advice concerning ongoing operations and programs of government institutions, as well as identifying and signalling legal trends and developments.

2. Preparation of Legal Documents:

Encompasses the development of legal agreements, such as contracts, treaties, authorizations, permits, real property documents, and memoranda of understanding.

3. Litigation Services:

Include proceedings before all court levels and before administrative and inquiry bodies, domestically and internationally, both for civil and criminal litigation. Litigation Services also involve representing the institution in the resolution of litigious or potentially litigious matters, gathering and challenging evidence in accordance with applicable rules of evidence, and developing legal positions and making submissions to preserve the interests of the institution or those of the federal government as a whole.

4. Legislative Drafting:

Encompasses everything an institution does in relation to the adoption or modification of an Act, Regulation, or other statutory instrument.

Retention

Recommended retention specifications in GVTs are determined based on traditional or best practices, a review of government-wide legislation and policy, and validation with subject matter experts. Retention periods are suggestions only; departments must take into account their own legislative requirements and business needs.

Recommended retention specifications were developed based on the Department of Justice Retention and Disposition Schedule (2012).

Business Value and Retention Recommendations

1. Legal Advice and Oversight

Business Processes	Recommendations: Information Resources of Business Value (IRBVs)	Recommendations: Retention Period
Providing policy and program advice Ensuring compliance to standards and regulations Providing legal opinions Requesting legal advice Requesting legal documents	Pertinent legal advice and/or strategies found in, for example: Requests Risk analysis Legal opinions/decisions Memoranda Draft authorizations, permits, licences, etc. Reports Title searches Correspondence Minutes of meetings Copy of Memoranda to Cabinet Footnote10 Briefing notes Backgrounders Draft TBS submissions *Includes correspondence documenting decisions or substantive opinions, and substantive drafts (i.e., drafts reflecting substantive content-based modifications rather than simple editorial alterations).	12 years after file closes, except: 25 years after file closes—where the resources relate to aboriginal matters or to real property and land

2. Preparation of Legal Documents

Business Processes	Recommendations: Information Resources of Business Value (IRBVs)	Recommendations: Retention Period
Negotiating the content of the document Assessing legal issues Drafting	Agreements Contracts Memoranda of understanding Title searches Authorizations Permits Treaties Real property documents, including: Leases Covenants, rights of way, easements, transfer documentation and other land title documents Transfers of administration and control Relevant drafts of above information resources that reflect significant change in direction Reports Party positions *Includes correspondence documenting decisions or substantive opinions, and substantive drafts (i.e., drafts reflecting substantive content-based modifications rather than simple editorial alterations).	12 years after file closes, except: 25 years after file closes—where the resources relate to aboriginal matters or to real property and land

3. Litigation Services (applies to civil and criminal litigation)

Business Processes	Recommendations: Information Resources of Business Value (IRBVs)	Recommendations: Retention Period
Preparation and filing of pleadings Producing affidavits/documents/evidence Examination for discovery Preparation for and conduct of trial Appeals process	Witness statements Subpoena Expert reports Evidence Risk analysis reports Assessments of the likelihood of adverse outcomes Input from related business areas Statement defence/statement of claim (all pleadings) Notices of appeal/factums Injunctions Argumentation plans/legal positions/legal opinions Formal notices Sworn statements/affidavits Investigation reports Writs of mandamus Transcripts of examination for discovery Transcripts of hearings Disclosure packages Briefing notes Records from litigation committees: Records of decision Minutes Agendas Strategies for litigation concerning, for example: Strategic plans Memoranda Risk analysis reports Assessments of the likelihood of adverse outcomes Contingency plans Financial records, for example: Quarterly reports on claims and pending and threatened litigation Estimates of potential liability or recoveries Correspondence *Includes correspondence documenting decisions or substantive opinions, and substantive drafts (i.e., drafts reflecting substantive content-based modifications rather than simple editorial alterations).	12 years after file closes, except: 25 years after file closes—where the information resources relate to aboriginal matters

4. Legislative Drafting (applies to civil and criminal litigation)

Business Processes	Recommendations: Information Resources of Business Value (IRBVs)	Recommendations: Retention Period
Development of statutes	Proposals, memos, plans, etc., for example: Policy proposals Copy of Memoranda to Cabinet Footnote11 Drafting instructions Draft bills Bill as tabled Committee proceedings and materials prepared for that purpose Bill as amended in committee if applicable Project plan Consultation plan Profiles of affected industries or other groups Input from stakeholders Analysis of the debates Overview of additional questions raised during the debates Written critique of the proposed amendment Briefing notes Briefing to the minister Questions and answers Speeches Parliamentary information packages, for example: Backgrounder Clause-by-clause analysis Issues papers General Qs and As Caucus and opposition briefing deck Highlight sheet Description of the consultation process	12 years after file closes
Developing Regulations and other statutory instruments	Policy proposal and relevant memos to minister Legal analysis of enabling authorities or other legal concerns Drafting instructions Drafts of regulation Regulation as published in Canada Gazette: Part 1 Stakeholder consultation records Notice of registration of final instrument Communications plan Performance Measurement and Evaluation Plan (PMEP) Footnote12 Regulatory Impact Analysis Statement (RIAS) Footnote13 *Includes correspondence documenting decisions or substantive opinions, and substantive drafts (i.e., drafts reflecting substantive content-based modifications rather than simple editorial alterations).	12 years after file closes