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1. notify the Department of Justice where it is believed that there may be a claim, suit, prosecution or professional disciplinary action or where notice of a claim, suit, prosecution or professional disciplinary action has been received as a result of an act performed or any alleged failure to act by an employee or former employee; and
    
2. determine whether or not employees were acting in good faith, within the scope of their assigned duties and within the scope of established departmental, divisional or program practices.

Employee

It is the responsibility of employees to:

1. immediately notify the Deputy Minister where employees believe there may be a claim, suit, prosecution or professional disciplinary action or where notice of a claim, suit, prosecution professional disciplinary action has been received; and
    

2. co-operate with the Employer in all matters relating to the Employer' s defence of a claim, suit, prosecution or professional disciplinary action;
    
3. not assume any obligation or liability, or take any steps to jeopardize the defence of a claim, suit, prosecution or professional disciplinary action, without the prior written approval of the Minister of Justice or delegate.

The Department of Justice may appoint a lawyer to represent employees where such representation is required as a result of a claim, suit, prosecution or professional disciplinary action. Before appointing a lawyer, the Department will consult with the employee(s) involved, but the final decision on selection of a lawyer will be the Department's.

Where outside legal counsel is appointed by the Department of Justice, payment will be made subject to the following fee schedule to a maximum of 10 hours per day:

Hourly rates in excess of $150.00 require the approval of Treasury Board and will only apply in exceptional circumstances as determined by the Deputy Minister of Justice.

Travel expenses incurred by outside legal counsel will be as per the Travel Policies, Human Resources Policy Manual.

Employees may elect, in lieu of a Department of Justice appointed lawyer, to retain their own legal counsel. Where this occurs, employees will be solely responsible for the conduct of their defence as well as costs, including damages.

The Employer may opt not to provide legal representation where employees have been dismissed with cause, and subsequently become the focus of a claim, suit, prosecution or professional disciplinary action related to the reason(s) for dismissal.

Where a lawyer is appointed by the Minister of Justice to represent employees in a claim, suit, prosecution or professional disciplinary action:

1. all costs of legal representation, including damages or settlements will be paid by the Employer;
    

2. the Employer will not seek to recover any portion of the costs from employees;
    
3. any costs recovered in the defence of the employee will be returned to the Employer

The Employer will not pay the legal fees or damages on behalf of employees where the Employer is of the view, or where the courts or professional associations rule, that employees were not acting in good faith or within the scope of their required duties.

Employees' salaries and benefits will continue where time away from work is required during a claim, suit, prosecution or professional disciplinary action or to give evidence.

The Employer may, where appropriate, discipline an employee with respect to the incident that is the subject of the claim, suit, prosecution or professional disciplinary action.

Last Updated: November 9, 2005
Reference: TBM 2005-314