College of Patent Agents and Trademark Agents Act (S.C. 2018, c. 27, s. 247)

Obligations

Marginal note:Standards of professional conduct and competence

32 A licensee must meet the standards of professional conduct and competence that are established by the code of professional conduct. A licensee who fails to meet those standards commits professional misconduct or is incompetent.

Marginal note:Code of professional conduct

• 33 (1) The Minister must, by regulation, establish a code of professional conduct for licensees.

• Marginal note:Amendment or repeal

  (2) Only the Board may, by regulation and with the Minister’s prior written approval, amend or repeal the regulations establishing the code.

Marginal note:Professional liability insurance

• 34 (1) Subject to subsections (2) and (3), a licensee must be insured against professional liability.

• Marginal note:Exception — employee of Her Majesty

  (2) A licensee who is employed by Her Majesty in right of Canada or a province, or by an agent of Her Majesty in right of Canada or an agent or mandatary of Her Majesty in right of a province, is not required to be insured against professional liability for work done as a licensee within the scope of that employment.

• Marginal note:Exception — by-laws

  (3) A licensee may be exempted by the by-laws from the application of subsection (1).

Suspension, Revocation and Surrender of Licences

Marginal note:Suspension

• 35 (1) The Registrar may, in accordance with the by-laws, suspend a licence if the licensee fails to

  • (a) pay the annual fee in accordance with the by-laws;

  • (b) pay, within the time and in the manner provided for under this Act, any other fee or amount that the licensee is required to pay under this Act;

  • (c) provide any information or document in accordance with the by-laws;

  • (d) comply with any requirement that is imposed by the by-laws with respect to continuing professional development;

  • (e) comply with a condition of their licence that is imposed under this Act;

  • (f) comply with any requirement with respect to professional liability insurance that is imposed under this Act; or

  • (g) comply with any other requirement that is imposed under the by-laws.

• Marginal note:Notification

  (2) The Registrar must notify a licensee in writing if their licence is suspended under this section.

• Marginal note:Length of suspension

  (3) A licence is suspended under this section until the licensee complies with the requirements set out in the by-laws to address the failure that led to the suspension or until the licence is revoked by the Registrar under subsection (4).

• Marginal note:Revocation

  (4) The Registrar may, in accordance with the by-laws, revoke a suspended licence if it has been suspended under this section for the applicable period of time that is specified in the by-laws.

Marginal note:Surrender of licence

36 The Registrar may, in accordance with by-laws, approve the surrender of a licence on application by a licensee made in accordance with the by-laws.

Investigations

Duty to Investigate

Marginal note:Investigation

37 The Investigations Committee must, on the basis of a complaint or on its own initiative, conduct an investigation into a licensee’s conduct and activities if it has reasonable grounds to believe that the licensee has committed professional misconduct or was incompetent.

Marginal note:Powers

• 37.1 (1) The Investigations Committee may take any of the following actions in respect of a licensee who is under investigation if it is satisfied that it is necessary for the protection of the public:

  • (a) impose conditions on a licence of the licensee;

  • (b) impose restrictions on the licensee’s entitlement to represent persons under section 27 or 30;

  • (c) suspend a licence of the licensee.

• Marginal note:Notice

  (2) The Investigations Committee must notify the licensee in writing of any action taken in respect of the licensee and must inform them of their right to make an application for a review by the Discipline Committee at any time.

• Marginal note:Action is provisional

  (3) Any action taken under subsection (1) is provisional and ceases to have effect if

  • (a) the Discipline Committee makes a decision under subsection 37.2(2) that amends or revokes the action;

  • (b) the Investigations Committee dismisses the matter under subsection 49(1);

  • (c) the Investigations Committee withdraws the application under section 50;

  • (d) the Discipline Committee exercises its powers under section 56; or

  • (e) the Discipline Committee renders a decision under section 57.

Marginal note:Request for review

• 37.2 (1) A licensee who receives a notice under subsection 37.1(2) may, at any time, request a review of the decision of the Investigations Committee made under subsection 37.1(1) by making an application to the Discipline Committee.

• Marginal note:Decision

  (2) On completion of the review, the Discipline Committee may confirm, amend or revoke any action taken by the Investigations Committee. If the Discipline Committee amends the actions, they cease to have effect in the circumstances referred to in paragraphs 37.1(3)(b) to (e).

• Marginal note:Notice

  (3) The Discipline Committee must, in writing, notify the licensee and the Investigations Committee of its decision and the reasons for it.

Marginal note:Notice to licensee

38 The Investigations Committee must give notice, before the conclusion of the investigation and in accordance with the by-laws, of the nature of an investigation to the licensee who is its subject and give the licensee a period of at least 30 days after the date of the notice within which they may make written representations to the Committee.

Complaints

Marginal note:Dismissal or referral

• 38.1 (1) The Registrar must consider all complaints received by the College relating to professional misconduct or incompetence by a licensee and may, subject to and in accordance with the by-laws, dismiss any complaint, in whole or in part, for any of the reasons set out in the regulations, but if they do not dismiss the complaint the Registrar must refer it to the Investigations Committee for consideration.

• Marginal note:Notice of dismissal

  (2) If the Registrar dismisses the complaint, the Registrar must notify the complainant in writing of the decision and the reasons for the dismissal and the notice must inform the complainant of their right to appeal the decision to the Investigations Committee within 30 days after the date of the notice.

• Marginal note:Limitation

  (3) The Registrar is not permitted to disclose privileged information in their notice to the complainant.

• Marginal note:Appeal

  (4) The complainant who receives a notice under subsection (2) may, within 30 days after the date of the notice, request an appeal of the Registrar’s decision to the Investigations Committee.

• Marginal note:Decision

  (5) The Investigations Committee must dispose of the appeal by dismissing it or allowing it and, if they allow it, they must consider the complaint.

Marginal note:Role of Investigations Committee

39 The Investigations Committee must consider all complaints that are referred to it by the Registrar and make a determination in respect of all appeals requested under subsection 38.1(4).

Marginal note:Conclusion of consideration

• 40 (1) If, after considering a complaint, the Investigations Committee does not have reasonable grounds to believe that the licensee has committed professional misconduct or was incompetent, the Committee must dismiss the complaint and notify the complainant in writing of the dismissal and the reasons for it.

• Marginal note:Limitation

  (2) The Investigations Committee is not permitted to disclose privileged information in its notice to the complainant.

Marginal note:Referral

41 With the complainant’s consent, the Investigations Committee may refer a complaint that it has dismissed to a body that has a statutory duty to regulate a profession.

Conduct of Investigation

Marginal note:Investigator

• 42 (1) The Investigations Committee may designate an individual as an investigator to conduct an investigation under the Committee’s direction.

• Marginal note:Revocation

  (2) The Investigations Committee may revoke the designation.

Marginal note:Powers of investigator

• 43 (1) For the purpose of investigating a licensee’s conduct and activities, an investigator may

  • (a) subject to subsection (3), enter the licensee’s business premises at any reasonable time and require the production of any document or other thing that is relevant to the investigation, and examine or copy the document or thing or remove it for examination or copying; and

  • (b) require the licensee, or a business partner or employee of the licensee or any person employed by the same employer as the licensee, to provide any information that is relevant to the investigation.

• Marginal note:Privileged information

  (2) An investigator may take any action under subsection (1) with respect to any privileged information, including privileged information contained in a document or other thing, unless the information

  • (a) is subject to litigation privilege or solicitor-client privilege or the professional secrecy of advocates and notaries;

  • (b) is not protected by the privilege set out in section 16.1 of the Patent Act or section 51.13 of the Trademarks Act; and

  • (c) is not related to a patent, a trademark, a geographical indication or a mark referred to in paragraph 9(1)(e), (i), (i.1), (i.3), (n) or (n.1) of the Trademarks Act.

• Marginal note:Warrant to enter dwelling-house

  (3) If the licensee’s business premises are in a dwelling-house, the investigator may enter them only with the occupant’s consent or under the authority of a warrant issued under section 44.

• Marginal note:Receipt

  (4) An investigator may remove a document or other thing from business premises under paragraph (1)(a) only if the investigator gives a person who appears to be in control of the premises a receipt for the document or thing.

Marginal note:Warrant

• 44 (1) On the application of an investigator, the Federal Court may issue a warrant authorizing an investigator to do anything set out in subsection (2) if the Court is satisfied by information on oath that

  • (a) there are reasonable grounds to believe that a licensee has committed professional misconduct or was incompetent;

  • (b) there are reasonable grounds to believe that there are documents or things in a place, including a dwelling-house, that are relevant to an investigation into the licensee’s conduct or activities; and

  • (c) the warrant is necessary because

    • (i) there are reasonable grounds to believe that the matter is urgent and that it would be impractical to carry out the investigation using only other investigative procedures,

    • (ii) there are reasonable grounds to believe that the powers conferred by section 43 have been or are likely to be ineffective,

    • (iii) there are reasonable grounds to believe that information in the documents or other things meets all the conditions set out in paragraphs 43(2)(a) to (c), or

    • (iv) section 43 does not authorize the investigator to enter the place.

• Marginal note:Powers

  (2) A warrant may authorize an investigator, subject to any conditions set out in the warrant, to

  • (a) enter and search the place referred to in paragraph (1)(b);

  • (b) examine or copy any document or other thing that is relevant to the investigation and that is in the place, including any document or thing that contains information that is privileged; and

  • (c) remove from the place any document or other thing that is relevant to the investigation, including any document or thing that contains information that is privileged.

• Marginal note:Receipt

  (3) An investigator who removes a document or other thing from a place under the warrant must give a receipt for the document or thing to a person who appears to be in control of the place.

• Marginal note:Use of force

  (4) In executing a warrant, an investigator may use force only if they are named in the warrant, are expressly authorized by it to use force and are accompanied by a peace officer.

• Marginal note:Ex parte application

  (5) An application under subsection (1) may be made ex parte.