Public Accounts Committee on April 8th, 2008

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Mr. Sims, unfortunately in this committee we are under a time clock, so I will move on.

You just said that by their nature many of these demands are quite time-consuming. The Auditor General raised the serious issue of timekeeping for services. There doesn't seem to be adequate control over that. I'd be curious to know what has been done.

Over the last couple of years departments have had comptrollers come into their departments. Do you now have a comptroller within your department, and is he or she addressing the aspect of controlling costs before we even get into the secondary aspect of this, which is finding or providing incentives to control costs? Is there a comptroller? Has he or she looked at the issue of timekeeping?

[John Sims]

I'm asking my colleague, Mr. McAuley, for the term of the officer who is responsible for such matters in the Department of Justice. I'll ask for that title in a moment.

We have timekeeping now.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Since when?

[John Sims]

I'll get that date for you in just a minute. We have had timekeeping for the last short period of time. This will allow us to build information on how much money is being spent on different classes of files. We will be able to do trend analysis with clients. That data is accumulating now. So we can sit down with clients and say that we detect that there's a certain class of issue, a certain kind of case, that is costing them so much money, and then ask if they want to continue to deal with it in this way or find some other way to handle it.

Maybe the legislation out of which the disputes arise, which generates all the work, could be amended. There are things we can do. There are already tools for legal risk management that allow us to find ways to control the demand.

The officer, of course, would be the chief financial officer. And we have had full timekeeping since December.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

So there is no comptroller in place at the present time.

As a deputy minister, I would assume that, especially in a department that's doubled its operating expenses, you'd be aware if a comptroller had been put in place in the department. So is there a comptroller or is there not?

[John Sims]

Yes, there is. I'm sorry if my answer seemed confusing. It's not called a comptroller; it's the chief financial officer. Of course we have a chief financial officer, and timekeeping has been in since December 2006.

[The Chair, Liberal, Shawn Murphy]

Mr. Sweet has seven minutes.

[David Sweet, Conservative, Ancaster—Dundas—Flamborough—Westdale, ON]

Thank you, Mr. Chairman.

I want to go back to a question Mr. Holland raised, because your answer about reporting to Parliament was that individual departments have their own expenses for legal services.

I was looking through this report and I was under the impression you billed other departments for the services you provide. Is that correct? If you do, then why is it impossible for you to aggregate all those numbers and put out a report?

[John Sims]

The lawyers who provide the legal services to departments and who are co-located with them work for the Department of Justice. I have their data and I report it now to Parliament. But some of the costs, which are related to the full delivery of service, would include the cost of accommodation, in some instances the cost of support staff, computer equipment, and that kind of thing. Those kinds of costs are provided by the department. We supply the lawyers and they supply these other costs. And I don't have access to those other costs from the Department of Justice.

[David Sweet, Conservative, Ancaster—Dundas—Flamborough—Westdale, ON]

You also mentioned in your answer that you had been talking to Treasury Board, and it's your understanding that there are plans for Treasury Board, because they have access to those numbers, to have an aggregate report. Is that correct?

[John Sims]

I'm saying I think this is something we should be discussing with Treasury Board to ensure it is addressed.

[David Sweet, Conservative, Ancaster—Dundas—Flamborough—Westdale, ON]

On a number of occasions throughout the report the Auditor General refers to human resources--for instance, page 9 and page 17, 5.45, 5.46

We have a corporation in Hamilton called Dofasco. They run an ad that says “Our product is steel. Our strength is people.” It's a nice little jingle, but it makes the point that if you're not training consistently and you don't have any way of monitoring the competencies of your staff--and it has been mentioned that there is a legal staff of 2,500 in your department--how can you possibly meet the challenges you're going to face in the future?

As Mr. Wrzesnewskyj said, we're continually getting into an environment of increased litigiousness. So I'm wondering, have you addressed that concern? What are you doing to make sure all your staff are getting the minimum amount of training they need?

[John Sims]

I think the Auditor General's report mentions that we've had a policy for some time that all professional staff must spend five days training. But what we have not had is a software program, some way of keeping track of whether that's taking place.

Recently we've also had individual learning plans, which we've had in the department for a while and which the clerk has been strongly urging all departments to adopt as well, which call for a conversation each year between each professional and his or her manager in which they discuss training needs. Basically a bargain is struck that the manager agrees that this employee needs this kind of development, which will have this kind of cost, and they agree that's going to take place. That's been going on for some time at an individual level.

What we've been missing is the tool the Auditor General correctly points out we're lacking; that is, can we push a button at the centre of the department and make sure it's happening as it should? We're working on that now. We're testing a software program that will allow us to keep track of it.

We take training very seriously. We do a lot of it.

The other thing I should quickly add is that as a result of a change in the costing formula for the delivery of legal services, we now have built in a training element. So part of the hourly rate for each lawyer now includes an amount for training, which means we're going to be assured of a proper fund to make sure all people get the training they need.

[David Sweet, Conservative, Ancaster—Dundas—Flamborough—Westdale, ON]

Could you give me an idea? You know that time has been a concern here. You're saying you're working on it, so you're talking about an enforcement mechanism to make sure the staff get the minimum amount of training. When is that going to be completed?

[John Sims]

I don't have that at my fingertips. Perhaps as the questioning goes on, one of my colleagues can give me the date, and I'll give it back to you.

[David Sweet, Conservative, Ancaster—Dundas—Flamborough—Westdale, ON]

On page 25, paragraph 5.81 to 5.85--it's been discussed a little bit here--there is mention of variable arrangements from department to department. There's a whole slew of them--a hundred, for goodness' sake. What work has been done to pare that down specifically? Is your end goal to make sure that there is one standard from department to department, barring, of course, the fact that there may be some significant--how would I say it?--idiosyncrasies of one specific department so that you have to modify it a bit?

[John Sims]

There are two parts to your question, I think. One is why do we have so many agreements, and then the second part is why do we have different agreements. We have a large number of agreements in some cases because we respond to the accountability requirements of the client with whom we're dealing. Some clients we work with have a very decentralized way of doing business, and they didn't want us to have one macro agreement with the entire department; they wanted us to enter into agreements with each of the major units that make up that department. So we responded to their request of us in that fashion. Of course we would like nothing better than to have these reduced to a more sensible number than a hundred, or whatever the figure was in the report, which seems excessive.

The other problem we're working on is that we've also had different clauses, and that's partly because historically we sat down and lawyers would respond to the individual needs of each client and work out something that was tailored to their needs. Then when you tried to roll it out, of course, you'd have a wide variety, and that's not efficient and effective. We're trying to reduce that. One of the major projects that the new law practice management division is working on is uniform agreements that we can roll out so we won't be into the business of negotiating a wide variety of different clauses every year.

[The Chair, Liberal, Shawn Murphy]

Thank you, Mr. Sweet and Mr. Sims.

That, colleagues, concludes the first round. What I propose we do is adjourn the meeting at approximately 12:45. There are a couple of items in committee business that I want to deal with in camera.

We're going to go to the second round now, and we're going to have three-minute rounds. Before we do that, I have a question to you, Mr. McAuley, and this deals with the whole issue of appointment of outside standing agents and contract civil agents on a case-by-case basis.

As the Auditor General said in her report, there's no documented rationale for the selection of these agents. When I was a lawyer on the street for 25 years, there was a very clear rationale back then, and that was called “patronage”. Successive Liberal and Conservative governments were shameless in the way these agents were picked. Please don't say it wasn't done that way, because everyone watching TV knows it was done that way. It really had little to do with the ability or the quality of legal services. It mainly had to do with the affinity of the party in power and how close you were to the existing political minister.

When a government changed, these legal agents would change automatically. In fact, in the middle of a case, one old lawyer in the community that I come from described it best when he said, “When the gravy train stops, not a drop spills over”. I think that clarified the whole issue.

My question to you, Mr. McAuley, is could you perhaps describe the current role of the political minister in the province? Do you get lists? Do you or your department communicate with the politicians involved--it's not all the MPs, but it would be the political minister--in the choosing of these lists and the selection of these agents? Could you describe the system?

[Terrance McAuley, Acting Assistant Deputy Minister, Management Sector, Department of Justice]

Perhaps I could begin by explaining the new process, and then I'll turn the final part of the question over to the deputy.

What we've done now is attempted to create pools of individual lawyers, so we have gone out into the legal community, and we've asked the legal community to express an interest in participating with us. With that in mind, we now create pools of candidates with various expertise that we can go to. As a legal issue comes into the office and there is one of those rare instances when we do use counsel from an outside source, we look, then, to that pool in terms of choosing the candidate who will proceed with the legal issue that's before us. That begins the process. It creates a neutral field of putting the best legal mind to the issue at hand.

Perhaps now I can turn it over to the deputy to speak to the second part.

[The Chair, Liberal, Shawn Murphy]

Hold on, though, Mr. McAuley. Are you saying that the political ministers have nothing whatsoever to do any more? Is that your evidence before the committee?

[Terrance McAuley]

The minister makes the final decision, so we push the matter to the minister.

[The Chair, Liberal, Shawn Murphy]

That clarifies it. Thank you very much. I think that clarifies a lot.

I think I got an answer to my question, but if you want to elaborate, Mr. Sims, go ahead.

[John Sims]

I would just like to say that at the level Mr. McAuley was describing, the expression of interest and the establishment of the initial pool, which is between 300 and 350 lawyers, it's done by officials of the Department of Justice. We invited firms all across the country to express an interest, and the assessment of the qualifications of the lawyers required for these rare cases where agents are hired is done by Department of Justice lawyers, who make a recommendation to the minister.

We think it's appropriate that the minister at the end of the day make the decision, because there's a subjective element to choosing a lawyer. He has to have confidence that the lawyers who will represent him personally in courts have the required qualifications. But that whole pool has been generated by the outsiders expressing an interest and justice department officials doing the vetting. Then from that list a recommendation is made to the minister.

[The Chair, Liberal, Shawn Murphy]

I think the point has been clarified.

We'll go to the second round. It has been brought to my attention that we may have time for four minutes. We'll see how we're getting along, but I'm going to be brutal with the time and I will interrupt.

Mr. Hubbard, you have four minutes.

[Charles Hubbard, Liberal, Miramichi, NB]

Thank you, Mr. Chair.

When you talk about 2,500 lawyers, do you mean there are 2,500 full-time lawyers working within the department, Mr. Sims? Is that correct?