Attorney General Barry Penner announced in the legislature May 12 the appointment of Stephen Toope, president and vice-chancellor of the University of British Columbia and former dean of McGill University's faculty of law, to conduct an independent review of government's legal fee indemnity policy for public servants.

The indemnity policy was originally put in place in the 1980s to assist certain categories of provincial employees with legal expenses arising from the performance of their employment.

As part of the review, Toope will answer a series of key questions about the indemnity policy, including:

• What is the objective of the policy?
• How does it work?
• Who is indemnified?
• Under what circumstances?
• Whether the policy is fair and how it compares to other jurisdictions?
• What, if any, changes need to be made?

The review will consider the policy's rationale, the history of its development including how it has been applied in the past, and the need for indemnity arrangements from a public administration perspective.

Toope will make recommendations to B.C. Attorney General Barry Penner by the end of October 2011, regarding how best to apply the policy in the future.

• The present indemnity policy is set out in section 73 of the Public Service Agency's Terms and Conditions for Excluded Employees and relates to non-criminal matters only.
• Indemnities in criminal matters have been provided on a case-by-case basis under the Financial Administration Act, section 7.
• To view Toope's letter of engagement, visit: http://www.newsroom.gov.bc.ca/downloads/AG_Toope_Letter.pdf

Two backgrounders follow.

Contact:
Dave Townsend
Government Communications and Public Engagement
Ministry of Attorney General
250 387-4962
250 889-5945 (cell)

BACKGROUNDER 1

Indemnity Policy Review
Terms of Reference

Introduction

The present formal indemnity policy is set out in section 73 of the Public Service Agency's Terms and Conditions for Excluded Employees ("PSA Terms"), and relates to civil litigation (non-criminal) matters only.

In addition, indemnities in criminal and other matters have been provided case by case on an ex gratia basis through indemnities under Financial Administration Act, section 72.

The indemnity policy applies to excluded employees, and appointees under the Public Service Act as well as to former excluded employees and appointees. It also applies to members of Executive Council and officers of the legislature in the same manner and to the same extent as excluded employees. It does not apply to bargaining unit employees, as they are covered by the terms of the applicable collective agreements. It also does not apply to Members of the Legislative Assembly (MLAs) in that capacity.

Purpose and Scope of Review

The Attorney General has requested an independent review of the provincial government's current policy and practice (the "Policy") regarding the indemnification of its excluded employees and others for legal expenses arising from the performance of their employment.

In summary, the purpose of the review is to consider and answer these questions about the Policy:

• What is the objective of the Policy?
• How does it work?
• Who is indemnified?
• Under what circumstances?
• Whether the Policy is fair and how it compares to other jurisdictions?
• What, if any, changes need to be made?

This review is to consider the rationale for the Policy, the history of the development of the Policy, how it has been applied in the past, and the need for indemnity arrangements from a public administration perspective.

The review should recommend the circumstances in which indemnity arrangements should be applied in respect of civil matters, and should separately consider an appropriate policy for criminal matters. Factors to be considered are further outlined below.

Specific Considerations

1. In non-criminal cases, the review should consider the various situations in which a public employee may be faced with a legal challenge arising in the performance of their employment. These include a public servant who becomes a defendant or plaintiff in a civil action (including in defamation actions), is a witness in legal proceedings involving the government, is subject to prosecution for a regulatory offence, is a respondent in professional body proceedings or in human rights proceedings. The review should provide guidelines to be consistently applied in any circumstance where coverage is appropriate.

2. In the criminal context, the review should consider whether there are circumstances in which it is appropriate for government, rather than the public servant, to bear the legal costs involved and if so, provide policy guidance regarding both the circumstances and the approach (for example, whether there should be an indemnity or reimbursement, and if indemnity, whether upon a guilty plea or conviction repayment should be required).

3. Where alternate means of legal expense coverage exist, they should be considered, as well as the possibility in criminal proceedings where a court may order public funding of defence costs (e.g. "Rowbotham" orders).

4. The review should consider the approaches taken by other public sector employers in BC, in other Canadian provinces, by the federal government, and in England, Australia and New Zealand, in order to provide "best practices" recommendations. The reviewer should also consult with the Legal Services Society of British Columbia about how they administer legal counsel retainers and manage costs.

5. For any circumstances that the review recommends coverage in some form, there should be guidelines, such as who should determine eligibility for coverage, what factors are appropriate or relevant (for example, the presumption of innocence in criminal cases) and what measures should be taken when arranging for and administering legal counsel retainers in order to better control costs, ensure appropriate review of billings, and protect solicitor-client privilege, confidentiality and privacy.

6. If the review contemplates limitations on legal counsel retainers, it should discuss whether a limitation or refusal of coverage may face judicial review. The review should also provide guidance regarding any conditions or requirements that should apply, such as repayment, appropriate security and termination of coverage.

7. The reviewer is at liberty to consult with any part of government, including the Legal Services Branch, the Public Service Agency, and the Risk Management Branch, to understand the evolution and application of the Policy, as well as the circumstances in which the Policy has been previously applied.

8. The final review recommendations should:

(a) consider the legal issues, criteria, and principles relating to indemnity coverage, the benefits and costs of providing such coverage, the consequences of not providing coverage, and the need to achieve an appropriate balance between the interests of taxpayers and public servants;

(b) if coverage in any form is recommended, provide guidelines and reasons for the recommended coverage;

(c) to the extent possible discuss the potential cost impacts of the recommended approach; and

(d) discuss the benefits, disadvantages, and considerations that arise under the various options for overseeing any indemnity or other coverage arrangements, including oversight by the Legal Services Branch, another branch of government, the Legal Services Society of B.C. or another outside agency.

9. The reviewer's report is to be submitted to the Attorney General on or before October 28, 2011 and will be made public within 30 days of being received by the Attorney General.

10. Although the reviewer will not receive any remuneration for conducting this review and preparing the report, the Ministry of Attorney General will arrange resources, including external legal counsel familiar with the Policy, and support services, to assist in locating and reviewing existing documents, and researching the policies of other jurisdictions and public agencies.

Contact:
Dave Townsend
Government Communications and Public Engagement
Ministry of Attorney General
250 387-4962
250 889-5945 (cell)

BACKGROUNDER 2

Professor Stephen J. Toope was named the 12th president and vice-chancellor of the University of British Columbia on March 22, 2006 and will begin his second five-year term in July 2011.

Prof. Toope's academic interests include public international law, legal theory, human rights, international dispute resolution and family law.

Prof. Toope is active with many associations, currently serving as vice chair of the Association of Universities and Colleges of Canada (AUCC), member of the Research Council of the Canadian Institute for Advanced Research (CIFAR) and chair of The Research Universities' Council of British Columbia (RUCBC). He is a past chair, World University Services Canada (WUSC). He also prepared a fact-finding report for the Maher Arar Commission.

From 1994 to 1999, Prof. Toope served as the dean of McGill University's faculty of law. Previously, he served as law clerk to the Rt. Hon. Chief Justice Dickson of the Supreme Court of Canada from 1986 to 1987.

Contact:
Dave Townsend
Government Communications and Public Engagement
Ministry of Attorney General
250 387-4962
250 889-5945 (cell)