Definitions

1   In this regulation:

"ADAG" means the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General;

"administrator" means,

(a) in respect of an employee other than a person described in paragraph (b), the agency head, or

(b) in respect of Crown counsel, the Assistant Deputy Attorney General, Criminal Justice Branch, Ministry of Attorney General;

"agency head" has the same meaning as in section 1 of the Public Service Act, and includes a person to whom the agency head has delegated the agency head's duties or powers under section 39 of this regulation;

"appeal" includes proceedings for leave to appeal;

"BC Public Service Agency" means the BC Public Service Agency continued under section 5 (1) of the Public Service Act;

"civil action" includes a proceeding for civil contempt;

"conduct", in respect of the conduct of an employee, includes any act or omission of the employee;

"coverage" means indemnity coverage provided under this regulation;

"Crown counsel" means

(a) a person who is designated as Crown counsel under section 4 of the Crown Counsel Act, or

(b) a special prosecutor appointed under section 7 of that Act;

"deputy minister" means,

(a) with respect to a position in a ministry, the deputy minister of the ministry, and

(b) with respect to a position with an employer that is an agency, board, tribunal, commission or government corporation, the person having overall responsibility for the agency, board, tribunal, commission or government corporation;

"employee" means

(a) an excluded employee within the meaning of the Excluded Employees Indemnity Protection Regulation, and includes a former employee, or

(b) a person, other than one referred to in paragraph (a), who is a Crown counsel or a former Crown counsel;

"employer" means

(a) the government, or

(b) an agency, board, tribunal, commission or government corporation in respect of which the Public Service Act applies to its employees;

"employment" means holding, as an employee, an office or position of employment or appointment;

"human rights proceeding" means a proceeding under the Human Rights Code;

"Legal Services Branch" means the Legal Services Branch of the Ministry of Attorney General;

"non-prosecution proceeding" means a type of proceeding, other than a prosecution, for which coverage may be provided under this regulation;

"outside counsel" means a lawyer who provides legal advice to or represents an employee in respect of a proceeding under a retainer agreement entered into by the government under this regulation;

"penalty proceeding" means a proceeding under an enactment in which the penalties that may be imposed on an individual are limited to monetary penalties, but does not include a civil action;

"performance of employment", in relation to an employee, means the performance or exercise, or the intended or purported performance or exercise, of the duties or powers of the employee's office or position of employment or appointment;

"professional body proceeding" means a proceeding before an employee's professional association or governing body, or before a committee of the association or body;

"prosecution" means

(a) a prosecution for a criminal or other offence, or a proceeding for criminal contempt, but does not include a penalty proceeding, and

(b) in relation to a prosecution within the meaning of paragraph (a) in respect of which coverage is provided to an employee under this regulation, other than coverage as a witness, a proceeding in which the employee is or is likely to be an accused;

"reconsideration" means, as applicable, a reconsideration under

(a) section 18 [requesting a reconsideration of a decision respecting eligibility], or

(b) section 36 [requesting a reconsideration of a decision respecting termination];

"reviewer" means a person appointed as reviewer under section 23 (2) [how government provides coverage in prosecutions];

"statutory power" has the same meaning as in the Judicial Review Procedure Act;

"transfer at undervalue" has the same meaning as in the Bankruptcy and Insolvency Act (Canada).

[am. B.C. Regs. 99/2018, Sch. 2, s. 6; 64/2021, s. 3.]

Employee may proceed at own expense

2   (1) Nothing in this regulation prevents an employee from retaining the employee's own legal counsel in respect of a proceeding, on terms and conditions set by the employee, at the employee's own expense.

(2) However, if an employee proceeds as referred to in subsection (1), the employee is not eligible for coverage under this regulation.

[am. B.C. Reg. 64/2021, s. 3.]

Where coverage may be available to employees

3   (1) An employee may be eligible for coverage as a party to the following proceedings:

(a) a civil action against the employee;

(b) a defamation action against the employee;

(c) a defamation action commenced or continued by the employee;

(d) a professional body proceeding in which the employee is the respondent;

(e) a human rights proceeding in which the employee is a respondent;

(f) a prosecution in which the employee is an accused person;

(g) a penalty proceeding in which the employee is an accused person or the respondent;

(h) an appeal or judicial review of the exercise of a statutory power by a person other than the employee;

(i) an appeal from a proceeding described in paragraphs (a) to (h).

(2) An employee is also eligible for coverage in circumstances where there are reasonable grounds to believe that a proceeding described in subsection (1) is likely to be commenced.

(3) An employee may be eligible for coverage in any proceeding in which the employee appears as a witness.

Where coverage is not available

4   An employee is not eligible for coverage with respect to any of the following:

(a) legal proceedings brought by or on behalf of the employee, other than a defamation action brought by the employee;

(b) legal advice or representation respecting coverage;

(c) a dispute between the employee and the employee's employer respecting the employee's employment;

(d) an appeal or judicial review of the exercise of a statutory power by the employee.

[am. B.C. Reg. 64/2021, s. 3.]

General eligibility requirements — coverage as a party

5   An employee is eligible for coverage as a party in a proceeding only if the employee's involvement in the proceeding arises from conduct that occurred in the performance of employment.

Additional eligibility requirements — coverage in non-prosecution proceedings

6   (1) An employee is eligible for coverage as a party in a non-prosecution proceeding only if the employee's conduct to which the proceeding relates was not dishonest, malicious or otherwise in bad faith.

(2) An employee is eligible for coverage as a defendant in a defamation action only if Legal Services Branch provides the administrator with a legal opinion that the statement at issue in the action

(a) was not defamatory,

(b) was not published by the employee,

(c) was made on an occasion of absolute privilege, or

(d) was reasonably related to the performance of employment and made without malice.

(3) An employee is eligible for coverage to commence or continue a defamation action only if

(a) Legal Services Branch provides the administrator with a legal opinion that there is a cause of action in defamation, and

(b) the administrator determines, based on the following factors, that it is in the public interest that such an action be commenced or continued:

(i) the need to rehabilitate the employee's usefulness for employment or appointment, including future employment or appointment by an employer;

(ii) the need to restore or preserve the integrity of the employee's office or position of employment or appointment;

(iii) the degree of likelihood that the defamation action will achieve the objectives set out in subparagraph (i) or (ii);

(iv) the need to achieve general deterrence of defamatory statements against employees;

(v) other factors that may be relevant to the public interest in commencing or continuing the defamation action by the employee.

(4) An employee is eligible for coverage under section 3 (1) (h) [coverage in appeal or judicial review for a person other than the statutory decision maker] only if

(a) the proceeding is likely to adversely affect the employee's personal privacy interests, and

(b) either

(i) the employee has a right to be served with the notice of appeal or petition and affidavits in the proceeding under the Supreme Court Civil Rules as a person whose personal interests may be affected by the order sought in the appeal or judicial review, or

(ii) there are reasonable grounds to believe that the employee is likely to be found to have the right to be served with the notice of appeal or petition and affidavits in the proceeding under the Supreme Court Civil Rules as a person whose personal interests may be affected by the order sought in the appeal or judicial review.

Eligibility requirements — coverage as a party to an appeal

7   (1) An employee is eligible for coverage as a party in an appeal in a non-prosecution proceeding only if

(a) the employee is eligible for coverage under

(i) section 5 [general eligibility requirements — coverage as a party], and

(ii) as applicable, section 6 [additional eligibility requirements — coverage in non-prosecution proceedings]

with respect to the proceeding from which the appeal is taken, and

(b) for a proceeding in which the employee is the appellant in the appeal, the administrator determines that it is in the public interest that an appeal be taken.

(2) An employee who has been acquitted in a prosecution is eligible for coverage as a party in an appeal by the Crown with respect to the prosecution only if the employee is eligible for coverage under section 5 [general eligibility requirements — coverage as a party].

(3) An employee who has been convicted in a prosecution is not eligible for coverage to appeal the conviction.

Eligibility requirements — coverage as a witness

8   An employee is eligible for coverage as a witness in a proceeding only if

(a) the evidence or testimony the employee is to provide relates to information acquired in the course of the employee's employment, and

(b) either

(i) the employee is required by law to appear as a witness, or

(ii) the administrator determines that it is in the public interest to provide coverage to the employee to appear as a witness.

[am. B.C. Reg. 64/2021, s. 3.]

Effect of other policies on coverage

9   (1) In this section, "another policy" or "other policy" means an indemnity, policy of insurance or other agreement, arrangement or award for coverage other than the coverage available under this regulation.

(2) If, in respect of a matter, an employee is eligible under another policy for coverage that is substantially the same as the coverage provided by government under this regulation and, under the other policy,

(a) the employee is eligible for full coverage of the matter, the employee is not eligible for coverage under this regulation, or

(b) the employee is eligible for partial coverage of the matter, the employee is eligible for coverage under this regulation only to the extent that the other policy does not provide coverage.

(3) Nothing in this regulation limits or restricts

(a) an employer other than government from providing coverage in respect of a matter for which coverage is provided under this regulation, or

(b) the government from indemnifying an employee in circumstances where coverage under this regulation does not apply, if that further indemnity complies with the Indemnities and Guarantees Regulation.

[am. B.C. Reg. 153/2018, s. (c).]

Coverage for judicial officers

9.1   (1) In this section, "judicial officer" has the same meaning as in the Judicial Officers (Legal Proceedings) Indemnity Regulation.

(2) Despite section 9 (2), an employee who is a judicial officer is not eligible for coverage under this regulation in relation to a proceeding described in section 7 (1) [eligible proceedings] of the Judicial Officers (Legal Proceedings) Indemnity Regulation.

[en. B.C. Reg. 162/2022, s. (b).]

Employee must provide notice of proceeding

10   (1) If an employee

(a) becomes aware of a proceeding that has been or is likely to be commenced, and

(b) is likely to be seeking coverage under this regulation in relation to the proceeding,

the employee must, at the earliest possible opportunity, inform the employee's deputy minister in writing of the proceeding and that the employee is likely to be seeking the coverage.

(2) In the case of a former employee, the deputy minister for purposes of this section and section 11 [applying for coverage] is the Deputy Attorney General.

[am. B.C. Reg. 64/2021, ss. 2 and 3.]

Applying for coverage

11   (1) An employee who wishes coverage in respect of a proceeding must deliver to the deputy minister, within a reasonable time after informing the employee's deputy minister of the proceeding, a written request for coverage in the form required by the administrator.

(2) An employee who wishes coverage for an appeal must make a new request under this section for that coverage.

[am. B.C. Reg. 64/2021, s. 3.]

How an application is processed

12   (1) A deputy minister who receives a request for coverage must promptly forward the request to the administrator, who must determine in accordance with this Part whether the employee is eligible to receive coverage.

(2) If the employee requesting coverage is the agency head, the ADAG or a deputy minister other than the Deputy Attorney General, that employee must

(a) inform the Deputy Attorney General, in the manner and within the time required under section 10 [employee must provide notice of proceeding], and

(b) deliver the written request described in section 11 [applying for coverage] to the Deputy Attorney General,

and the Deputy Attorney General must perform all the duties and exercise all the powers of the administrator and the ADAG under this regulation with respect to that employee's request.

Determining initial eligibility — coverage in non-prosecution proceedings

13   In considering an application for coverage as a party in a non-prosecution proceeding other than an appeal, the administrator may determine that the employee is eligible for coverage if

(a) the administrator is satisfied that the requirements under

(i) section 5 [general eligibility requirements — coverage as a party], and

(ii) as applicable, section 6 (2) to (4) [additional eligibility requirements — coverage in non-prosecution proceedings]

are met, and

(b) the administrator has no reason to believe that the requirements under section 6 (1) [additional eligibility requirements — coverage as a party in non-prosecution proceedings] are not met.

Determining initial eligibility — coverage in prosecutions

14   In considering an application for coverage in relation to a prosecution in which the employee is or is likely to be an accused, the administrator may determine the employee is eligible for coverage in respect of the prosecution if satisfied that the requirements under section 5 [general eligibility — coverage as a party] are met.

Determining initial eligibility — coverage as a party to an appeal

15   (1) In considering an application for coverage under section 7 (1) [eligibility requirements — coverage as a party to an appeal] as a party to an appeal in a non-prosecution proceeding, the administrator may determine the employee is eligible for coverage if satisfied that

(a) the requirements for coverage under that provision are met, and

(b) if the employee is the appellant in the appeal, it is in the public interest that an appeal be taken.

(2) The administrator must make a determination under subsection (1) (b) on the basis of the following factors:

(a) there are reasonable grounds to believe that the employee's reputation or personal privacy interests, or the integrity of the employee's office or position of employment, is likely to be adversely affected if the appeal did not proceed;

(b) the likelihood that the appeal will be successful;

(c) any other factors that the administrator considers may be relevant to the public interest in an appeal being taken.

(3) In considering an application for coverage under section 7 (2) [eligibility requirements — coverage as a party to a prosecution appeal] as a party to a Crown appeal in a prosecution proceeding, the administrator may determine the employee is eligible for coverage if satisfied that the requirements under section 5 [general eligibility — coverage as a party] are met.

Determining initial eligibility — coverage as a witness

16   (1) In considering an application for coverage as a witness in a proceeding, the administrator may determine that the employee is eligible for coverage if satisfied that

(a) the evidence or testimony the employee is to provide relates to information acquired in the course of the employee's employment, and

(b) either

(i) the employee is required by law to appear as a witness, or

(ii) it is in the public interest to provide coverage to the employee to appear as a witness.

(2) The administrator must make a determination under subsection (1) (b) (ii) on the basis of the following factors:

(a) there are reasonable grounds to believe that the employee's reputation is likely to be adversely affected by evidence given in the proceeding;

(b) there are reasonable grounds to believe that any conduct of the employee in the performance of employment is likely to be subject to negative findings in the proceeding;

(c) there are reasonable grounds to believe that the employee's personal privacy interests are likely to be adversely affected;

(d) other factors that the administrator considers may be relevant to the public interest in providing coverage.

[am. B.C. Reg. 64/2021, s. 3.]

Administrator must give notice of right to reconsideration if coverage refused

17   If, in dealing with the application for coverage, the administrator determines that the employee is not eligible for coverage, the administrator must notify the employee to that effect, in writing, with the following information:

(a) a written summary of the reasons for the administrator's determination;

(b) notice of the employee's right to request a reconsideration under section 18 [requesting a reconsideration of a decision respecting eligibility];

(c) the time within which the request for reconsideration must be made.

Requesting a reconsideration of a decision respecting eligibility

18   (1) An employee may request that the administrator reconsider a determination of eligibility under this Part by delivering a written request to the administrator, together with any evidence or submissions the employee wishes the administrator to consider.

(2) The request must be made within

(a) 14 days after receipt of the notice referred to in section 17 [notice of right to reconsideration], or

(b) such longer period as the administrator considers appropriate in the circumstances.

(3) Evidence or submissions delivered under subsection (1) may be delivered in person, electronically or by ordinary mail or facsimile transmission, and delivery is effective on the date of actual receipt.

(4) As soon as practicable after the time period referred to in subsection (2) has expired, the administrator must, after reviewing any evidence and submissions delivered by the employee,

(a) confirm or reverse the determination with respect to the employee's eligibility for coverage, and

(b) communicate in writing to the employee the administrator's decision under paragraph (a) of this subsection, with reasons addressing any evidence or submissions delivered under subsection (1).

Government must provide coverage to eligible employee

19   The government must provide coverage in accordance with this regulation if

(a) an employee has applied for coverage under section 11 [applying for coverage], and

(b) the administrator determines the employee is eligible for coverage.

Coverage is provided in relation to employee's performance of employment

20   (1) Subject to subsection (2), coverage for legal fees, disbursements and other expenses incurred by or on behalf of an employee in relation to a proceeding is provided as being an expense in relation to the performance of employment by the employee.

(2) Subsection (1) does not apply if there is a finding in the proceeding that the employee conduct to which the proceeding relates

(a) did not occur in the performance of employment, or

(b) was dishonest, malicious or otherwise in bad faith.

(3) Subsection (2) (b) does not apply in relation to a civil action against a Crown counsel for malicious prosecution.

When coverage begins

21   (1) Subject to subsection (2), the government may provide coverage only in respect of legal fees, disbursements and other expenses or financial obligations that arise or are incurred after the date an employee informs the employee's deputy minister, under section 10 [employee must provide notice], of a proceeding involving the employee.

(2) The government may provide coverage in respect of some or all legal fees, disbursements and other expenses or financial obligations that arose or were incurred before the employee informed the deputy minister, if the administrator is satisfied that

(a) the employee could not reasonably comply with the requirement to inform the employee's deputy minister before the legal fees, disbursements and other expenses or financial obligations arose or were incurred, and

(b) the employee acted reasonably in seeking legal advice before informing the deputy minister.

[am. B.C. Reg. 64/2021, s. 3.]

How government provides coverage in non-prosecution proceedings

22   The government provides coverage for an employee in a non-prosecution proceeding by

(a) providing legal advice and representation to the employee by

(i) appointing legal counsel for the employee from Legal Services Branch, or

(ii) appointing outside counsel for the employee and reimbursing the employee for, or paying, the fees, disbursements and other expenses of outside counsel,

(b) paying for the employee's liability, if any, under a judgment, order or settlement in the proceeding, and

(c) paying an award, fine or penalty ordered against the employee.

How government provides coverage in prosecutions

23   (1) The government provides coverage for an employee who is an accused in a prosecution by paying the amounts certified for payment in accordance with this section to legal counsel appointed by the employee to represent that employee in defence of the prosecution under a retainer agreement in accordance with this section.

(2) The government must, after consultation with the employee's legal counsel, appoint a person to

(a) set the terms and conditions of the legal counsel's retainer agreement, and

(b) review the accounts of the employee's legal counsel.

(3) In setting the terms and conditions of a retainer agreement under this section, the reviewer must set the maximum amount of legal fees, disbursements and other expenses that may be claimed under the retainer agreement, having regard to the principle that the expenditure of public money under the retainer agreement should not exceed the minimum amount that is reasonably expected to be required to achieve a fair trial.

(4) The reviewer may amend the terms and conditions of a retainer agreement under this section, including the maximum amount required under subsection (3), if satisfied that amendment is required to ensure that the employee receives a fair trial.

(5) The following procedure applies for determining the amount to be paid to the employee's legal counsel:

(a) the employee's legal counsel must submit the relevant accounts, prepared in accordance with the retainer agreement, to the reviewer;

(b) the reviewer may certify amounts payable by the government only if satisfied that the amounts claimed on an account are consistent with the following:

(i) the terms and conditions of the retainer agreement;

(ii) the amount reasonably required to be expended in order to ensure that the employee receives a fair trial, both

(A) in respect of the work done or disbursement or charge incurred to which an account relates specifically, and

(B) in defence of the prosecution generally.

(6) The government must pay to the employee's legal counsel those amounts certified under subsection (5) (b).

[am. B.C. Reg. 64/2021, s. 3.]

Employee accepts terms and conditions of coverage

24   (1) In applying and being determined eligible for coverage, the employee agrees to the terms and conditions established under this Part.

(2) It is a condition of coverage that the employee be eligible and continue to be eligible for coverage.

(3) Coverage is to be provided in accordance with Part 3 [How Coverage is Provided].

(4) The administrator may make the determinations the administrator considers necessary to ensure compliance with the terms and conditions of coverage for an employee.

Government authority to appoint and instruct legal counsel in certain proceedings

25   (1) Subject to section 28 [employee authority in certain proceedings], the government has the authority to appoint and instruct legal counsel, in respect of the following proceedings or an appeal from one of the following proceedings:

(a) a civil action against an employee;

(b) a defamation action against an employee;

(c) a human rights proceeding;

(d) a penalty proceeding;

(e) a proceeding in which an employee is a witness;

(f) a proceeding involving the employee's personal privacy interests.

(2) The ADAG may, for a proceeding listed in subsection (1), appoint

(a) legal counsel from Legal Services Branch, or

(b) outside counsel chosen by the ADAG in consultation with the employee.

(3) The government may allow an employee to exercise all or part of the government's authority under subsection (1) on the terms and conditions the ADAG considers appropriate.

Retainer agreements for outside counsel in non-prosecution proceedings

26   (1) The government has sole authority to set the terms and conditions of a retainer agreement, other than in a prosecution, including setting the maximum amount of legal fees, disbursements and other expenses that may be paid under the agreement for outside counsel appointed

(a) by the government under section 25 (2) (b) [ADAG appoints counsel after consultation with employee], or

(b) by an employee under section 28 (1) (a), (b) or (c) [employee authority in certain proceedings].

(2) The rate for legal fees to be set under subsection (1) must be consistent with the rate for legal fees paid to ad hoc counsel retained by Legal Services Branch to act for the government in comparable civil proceedings.

Government authority to settle certain proceedings

27   (1) The government has the authority to settle the following proceedings or an appeal from one of the following proceedings:

(a) a civil action against an employee;

(b) a defamation action against an employee;

(c) a human rights proceeding.

(2) The government may allow an employee to exercise all or part of the government's authority under subsection (1), on the terms and conditions the ADAG considers appropriate.

(3) If the government proposes settlement of a proceeding, the ADAG must notify the employee in writing of the proposed settlement, with a written summary of the following:

(a) the terms of the proposed settlement;

(b) the reasons the government considers the proposed settlement to be advisable.

(4) If the employee disagrees with the proposed settlement, the employee may assume conduct and control of the proceeding and the following conditions apply:

(a) the government will terminate coverage for the proceeding;

(b) the employee must not say or do anything or fail to do anything that Legal Services Branch has advised the employee could affect the government's financial or other interests;

(c) the employee must agree to indemnify the government, on terms and conditions and with security satisfactory to the government, for any financial harm to the government caused or contributed to by the employee continuing with the proceeding.

Employee authority in certain proceedings

28   (1) An employee has the authority to appoint and instruct legal counsel in respect of the following proceedings or an appeal from one of the following proceedings:

(a) a defamation action by an employee;

(b) a professional body proceeding;

(c) any proceeding in which an employee reasonably asserts that there is a conflict of interest between the employee and the government or the employee and another employee involved in the proceeding;

(d) a prosecution.

(2) An employee has authority to

(a) settle a proceeding referred to in subsection (1) (a), (b) or (c), after consulting with the administrator, and

(b) plead guilty in a prosecution.

Confidentiality and disclosure

29   (1) Without limiting any right of privilege or confidentiality otherwise provided by law, the following information is privileged and confidential and, subject to subsection (2), must not be disclosed by any person to any person:

(a) the fact that coverage has been requested, provided, denied or terminated;

(b) the fact that legal counsel has been provided or appointed;

(c) any term or condition of a retainer agreement with legal counsel;

(d) any work done, disbursement or charge incurred, account submitted, or amount paid or payable by legal counsel in respect of a proceeding;

(e) any other payment or reimbursement made or required to be made in respect of coverage;

(f) the fact that a reviewer has been appointed under section 23 [how government provides coverage in prosecutions], any term or condition of a retainer agreement under that section or any accounts reviewed by the reviewer under that section;

(g) any proposal by the government of settlement of a proceeding that is subject to coverage, any term or condition of the proposed settlement and whether the employee has accepted or rejected the proposal;

(h) any information, including any evidence, submission or legal opinion provided or obtained or factor considered, and any notice or reason given or communication made under this regulation, in relation to any of the matters set out in paragraphs (a) to (g).

(2) The restriction on disclosure in subsection (1) does not apply

(a) to the extent disclosure is required by law,

(b) to disclosure to the employee, the employee's legal counsel, a reviewer, or any other person responsible for administration of this regulation or otherwise involved in coverage,

(c) to disclosure with the written consent of every person whose personal interests or privilege may be affected by the disclosure, or

(d) to disclosure by the government in the circumstances described in subsections (3) and (4).

(3) An employee must

(a) consent under section 33 (2) (c) [consent to disclosure of personal information] of the Freedom of Information and Protection of Privacy Act to disclosure by the government of the total amount paid or incurred by the government for an employee's coverage related to a proceeding, and

(b) waive any solicitor-client privilege that may exist in the employee's favour respecting the total amount paid or reimbursed.

(4) A consent or waiver referred to in subsection (3) takes effect only on conclusion of the proceeding for which the amount was paid or incurred, and after all rights of appeal of any party to the proceeding have been exhausted or extinguished.

[am. B.C. Regs. 64/2021, s. 3; 297/2021, Sch. 1.]

Additional conditions that apply to non-prosecution proceedings

30   (1) The conditions set out in this section apply to all coverage under this regulation, other than coverage under section 23 [how government provides coverage in prosecutions].

(2) An employee must not

(a) voluntarily assume any liability in respect of a proceeding to which coverage may otherwise apply, or

(b) subject to section 28 (2) (a) [authority to settle in certain proceedings], settle a proceeding to which coverage may otherwise apply,

except at the employee's own expense or with the written approval of the government.

(3) If the government has appointed legal counsel for an employee, the employee must cooperate fully in relation to the matter with that counsel, including by

(a) providing information that is complete and correct in all material respects, and

(b) aiding in securing other information or evidence and the attendance of witnesses.

(4) If one legal counsel represents both an employee and either the employee's employer or another employee, and a conflict of interest arises between the employee and the employer or between the first employee and the other employee, legal counsel must cease to represent the employees but may continue to represent the employer.

(5) If the government has appointed legal counsel in a proceeding, an employee must not

(a) interfere in any way in the proceeding or any negotiations for settlement of the proceeding, or

(b) act in a manner that creates a conflict of interest between the employee and the government or between the employee and another employee involved in the proceeding.

(6) An employee must not

(a) say or do anything, or

(b) fail to say or do anything

against the advice of legal counsel.

Administrator may require employee to reimburse
coverage in non-prosecution proceedings

31   (1) If the employee's coverage in a non-prosecution proceeding is terminated under section 34 (1) [when coverage ends — termination on basis employee not eligible or conditions breached], the administrator may, after taking into consideration the reasons coverage was terminated, direct that the employee reimburse the government for all or part of the amount paid or payable by the government for coverage.

(2) An employee who has been provided coverage under this regulation in relation to a proceeding must reimburse the government under subsection (3) if, in the proceeding, there is

(a) an order for costs in favour of the employee,

(b) another order or direction that money be paid to the employee for legal fees, disbursements or other expenses incurred by or on behalf of the employee in the proceeding, or

(c) in the case of a defamation action by the employee, an award of damages to the employee.

(3) In the circumstances described in subsection (2), the employee must

(a) reimburse the government from the money paid to the employee under the order, direction or award, to the fullest extent possible, the amount paid or payable by the government to provide coverage, or

(b) assign to the government the employee's rights under the order, direction or award.

Employee obligation to reimburse coverage in prosecutions

32   (1) The section applies to coverage under section 23 [how government provides coverage in prosecutions].

(2) If, after the rights of appeal of the employee and the Crown have been exhausted or extinguished, the result of the prosecution is that the employee is convicted in relation to any of the offences with which the employee was charged, the employee must reimburse the government for all amounts paid or payable under section 23 in providing the coverage.

(3) If the employee's coverage is terminated under

(a) section 34 (1) [when coverage ends — termination on basis employee not eligible or conditions breached], or

(b) section 34 (3) [when coverage ends — non-compliance in relation to provision of security],

the administrator may, after taking into consideration the reasons coverage was terminated, direct that the employee reimburse the government for all or part of the amount paid or payable by the government for coverage.

(4) The administrator may, having regard to the employee's circumstances, direct the employee to provide security or further security, in accordance with the direction, for the amount that may be required to be reimbursed under this section.

(5) The employee must not, on or after the date on which an act or omission that is the subject of the prosecution occurred, have made or make a transfer at undervalue of any property that may be the subject of security under this section.

(6) For the purposes of subsection (5), if the offence charged is a continuing offence, the date under that subsection is the date on which the relevant act or omission first occurred.

(7) The government must release or return the security provided under this section if, after the rights of appeal of the employee and the Crown have been exhausted or extinguished,

(a) the result of the prosecution is that

(i) the employee has been acquitted of all charges in the prosecution,

(ii) the Crown has withdrawn all charges against the employee, or

(iii) the court has ordered or, on application of the Crown has entered, a stay of all charges against the employee other than those on which the employee has been acquitted, and

(b) coverage has not been terminated as referred to in subsection (3).

Enforcing requirement to reimburse the government

33   The government may recover any money owing by an employee under

(a) section 31 [administrator may require employee to reimburse coverage in non-prosecution proceedings], or

(b) section 32 [employee obligation to reimburse government and provide security for coverage in prosecutions]

as a debt due to government, payable on demand.

When coverage ends

34   (1) Subject to subsection (2), the government must terminate coverage of an employee under this regulation if at any time the administrator determines that

(a) at the time application for coverage was made under Part 2 [Application for Coverage and Determination of Eligibility], the employee was not eligible for coverage,

(b) the employee is no longer eligible for coverage, or

(c) the employee is in breach of any of the terms and conditions of coverage and the breach is not remedied within the time and in the manner directed by the administrator.

(2) If coverage relates to a prosecution, the government may terminate coverage under subsection (1) only after the decision maker in the proceeding issues its decision unless subsection (3) applies.

(3) The government may terminate coverage of an employee under this regulation in relation to a prosecution if, at any time, the administrator

(a) determines that the employee has failed to provide security, as required under section 32 (4) [employee obligation to provide security for coverage in prosecutions], or

(b) has reason to believe that the employee has made a transfer at undervalue as referred to in section 32 (5).

(4) Termination of coverage takes effect on the date of the notice given under section 35 [notice of termination and right to reconsideration].

(5) The government may, in any event, terminate coverage

(a) once an employee is no longer involved as a party, accused or witness in a proceeding, or

(b) if or to the extent that the employee is eligible under another policy referred to in section 9 [effect of other policies on coverage].

Administrator must give notice of termination and right to reconsideration

35   If the government is terminating coverage under section 34 (1) or (3) [when coverage ends — ineligibility or non-compliance], the administrator must notify the employee to that effect in writing, with the following information:

(a) a written summary of the reasons for the administrator's determination in relation to which the termination is made;

(b) notice of the employee's right to request a reconsideration under section 36 [requesting a reconsideration of a decision respecting termination];

(c) the time within which the request must be made.

Requesting a reconsideration of a decision respecting termination

36   (1) An employee may request that the administrator reconsider a determination under section 34 (1) or (3) [when coverage ends — ineligibility or non-compliance] by delivering a written request to the administrator, together with any evidence or submissions the employee wishes the administrator to consider.

(2) The request must be made within

(a) 14 days after receipt of the notice referred to in section 35 [notice of termination and right to reconsideration], or

(b) such longer period as the administrator considers appropriate in the circumstances.

(3) Evidence or submissions delivered under subsection (1) may be delivered in person, electronically or by ordinary mail or facsimile transmission, and delivery is effective on the date of actual receipt.

(4) As soon as practicable after the time period referred to in subsection (2) has expired, the administrator must, after reviewing any evidence and submissions delivered by the employee,

(a) confirm or reverse the determination with respect to the employee's eligibility for coverage, and

(b) communicate in writing to the employee the administrator's decision under paragraph (a) of this subsection, with reasons addressing any evidence or submissions delivered under subsection (1).

(5) If the administrator reverses the determination, coverage for the employee is reinstated.

Administrator's obligation to consult ADAG

37   (1) Before making a determination or direction under any of the following provisions, the administrator must consult with and obtain legal advice from the ADAG:

(a) Part 2 [Application for Coverage and Determination of Eligibility];

(b) section 31 [administrator may require employee to reimburse coverage in non-prosecution proceedings];

(c) section 32 [employee obligation to reimburse coverage in prosecutions];

(d) Part 5 [Termination of Coverage].

(2) The administrator must not make a determination or direction referred to in subsection (1) that is inconsistent with any legal advice given by the ADAG.

(3) The administrator must consult with the ADAG if a settlement referred to in section 28 (2) (a) [employee authority in certain proceedings] is proposed.

Record of administrator decisions respecting reimbursement

38   The administrator must maintain a record of any determination or direction made by the administrator with respect to reimbursement to the government by an employee, setting out

(a) the name of the employee, and

(b) the amount owing to the government.

Agency head may delegate

39   The agency head may delegate any of the agency head's duties or powers under this regulation, except the power to delegate, to an employee of the BC Public Service Agency.

[am. B.C. Reg. 64/2021, s. 3.]

Other persons who may be provided coverage under this regulation

40   A person in a class of persons set out in Column 1 of the table in the Schedule is eligible for coverage under this regulation, in accordance with that Schedule.

Payment of amounts provided under indemnity

41   If an amount becomes payable for coverage under this regulation, the administrator must direct the Executive Director of the Risk Management Branch in the Ministry of Finance to make the payment or arrange for the payment to be made.

Practices respecting determination of eligibility

42   The agency head must develop and publish practices that apply in relation to the agency head's determination of eligibility for coverage under this regulation.

Transition

43   The other provisions of this regulation respecting indemnities do not apply to a matter for which the government, before the date this regulation comes into force, provided an employee with indemnity in respect of legal fees, disbursements and other expenses or financial obligations in relation to a proceeding, and the indemnity remains in effect on the same terms and conditions as set out in the indemnity.

Definition

1   In this Schedule, "tribunal" means a tribunal as defined in the Administrative Tribunals Act.

Coverage

2   A person in a class of persons set out in Column 1 of the table is eligible for coverage under this regulation, as if a person in the class were an employee, with the following modifications:

(a) the official described opposite in Column 2 is the official to whom a person in that class must submit a notice under section 10 [employee must provide notice of proceeding] and a request for coverage under section 11 [applying for coverage] of this regulation;

(b) the official described opposite in Column 2 has the powers and authority of the administrator to make determinations and directions under

(i) Part 2 [Application for Coverage and Determination of Eligibility],

(ii) Part 4 [Terms and Conditions of Coverage],

(iii) Part 5 [Termination of Coverage], and

(iv) section 41 [payment of amounts provided under indemnity],

and has the obligations of the administrator under section 38 [record of administrator decisions respecting reimbursement], as if the official were the administrator under those provisions;

(c) for a person in a class of persons described in item 1 or 4 of the table, the official described opposite in Column 2 has

(i) the powers and authority of the government under section 25 [government authority to appoint and instruct counsel in certain proceedings],

(ii) the powers and authority of the government under section 27 [government authority to settle certain proceedings], and

(iii) the powers and authority to appoint outside counsel chosen by the official in consultation with the person, but not the powers and authority to set the terms and conditions of the retainer agreement for the legal counsel.