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

Marginal note:Order — document or information

• 45 (1) On the application of an investigator, the Federal Court may make an order requiring a person to produce any document or other thing for examination, copying or removal by an investigator or to provide any information to an investigator, subject to any conditions that are specified in the order, 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 the document, thing or information is relevant to an investigation into the licensee’s conduct or activities; and

  • (c) the order 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) paragraph 43(1)(b) does not authorize the investigator to require the person to provide the information, or

    • (iv) there are reasonable grounds to believe that the document or thing contains information that meets, or the information meets, all the conditions set out in paragraphs 43(2)(a) to (c).

• Marginal note:Privileged information

  (2) An order under subsection (1) may be made with respect to any privileged information, including privileged information contained in a document or other thing.

• Marginal note:Ex parte application

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

• Marginal note:Receipt

  (4) An investigator who removes a document or other thing produced under an order must give a receipt for the document or thing to the person who produces it.

Marginal note:Sealing and notification — legal counsel

• 46 (1) If an investigator requires the production of a document or other thing — or is about to examine, copy or remove it — under section 43, under a warrant issued under section 44 or under an order made under section 45, and the document or thing is in the possession of legal counsel or a firm of legal counsel,

  • (a) the investigator must not examine or copy the document or thing;

  • (b) legal counsel or a representative of the firm must place the document or thing in a package and seal and identify the package in accordance with the regulations;

  • (c) the investigator must retain and remove the package once it is sealed; and

  • (d) legal counsel or the firm must take all reasonable steps

    • (i) to notify the holder of a privilege with respect to the document or thing within the period prescribed by regulation, or

    • (ii) if the holder cannot be located within that period, to immediately notify the law society of the applicable province or the Chambre des notaires du Québec, as the case may be.

• Marginal note:Objection

  (2) If an investigator requires the production of a document or other thing — or is about to examine, copy or remove it — under section 43, under a warrant issued under section 44 or under an order made under section 45, a person in possession of the document or thing may object to its production, examination, copying or removal on one or more of the following grounds:

  • (a) the document or thing is not relevant to the investigation;

  • (b) if the investigator is acting under section 43, the document or thing contains information that meets all the conditions set out in paragraphs 43(2)(a) to (c);

  • (c) if the investigator is acting under the authority of a warrant or order, the production, examination, copying or removal of the document or thing is not authorized by the warrant or order.

• Marginal note:Objection — sealing and notification

  (3) If the person makes an objection under subsection (2),

  • (a) the investigator must not examine or copy the document or thing;

  • (b) the person must place the document or thing in a package and seal and identify the package in accordance with the regulations;

  • (c) the investigator must retain and remove the package once it is sealed; and

  • (d) if the person is not the owner of the document or thing or the holder of a privilege with respect to it, the person must immediately notify the owner or holder of the objection.

• Marginal note:Application to Federal Court

  (4) The legal counsel or firm referred to in subsection (1), the person who makes the objection under subsection (2) or any other person who has a right or interest in the document or other thing that is sealed may apply to the Federal Court in accordance with the regulations for a determination of whether any of the grounds set out in paragraphs (2)(a) to (c) apply with respect to the document or thing.

• Marginal note:Handling of sealed package

  (5) The sealed package is to be retained, opened or returned only in accordance with the regulations.

Marginal note:Return or application for retention order

• 47 (1) An investigator who, as a result of the application of any of sections 43 to 45 or the regulations referred to in subsection 46(5), is in possession of a document or other thing that is not in a sealed package must, within the applicable period determined in accordance with the regulations made under paragraph 76(1)(i), return the document or thing or apply to the Federal Court for a retention order under subsection (2).

• Marginal note:Retention order

  (2) On application by the investigator, the Federal Court may order that the document or thing may be retained by the investigator until no later than the conclusion of the investigation or, if an application is made to the Discipline Committee under subsection 49(1), until the final disposition of the proceedings before the Discipline Committee and any appeals. If the Court does not order that the document or thing be retained, the document or thing must be returned as soon as feasible.

Marginal note:Application for return

• 48 (1) A person who has a right or interest in a document or other thing that, as a result of the application of any of sections 43 to 45 or the regulations referred to in subsection 46(5), is in the possession of an investigator and that is not in a sealed package may, on giving notice to the Investigations Committee, apply to the Federal Court for an order that the document or thing be returned or that any copies of the document or thing made by or on behalf of the Committee or an investigator be destroyed.

• Marginal note:Order

  (2) The Court may order, on any conditions that it considers appropriate,

  • (a) that the document or thing be returned; and

  • (b) that any copies of the document or thing made by or on behalf of the Investigations Committee or an investigator be destroyed, if the removal of the document or thing by an investigator was not authorized under this Act.

Conclusion of Investigation

Marginal note:Application or dismissal

• 49 (1) If, at the conclusion of an investigation, the Investigations Committee is satisfied that there is sufficient evidence that the licensee has committed professional misconduct or was incompetent, the Committee must apply to the Discipline Committee for a decision as to whether the licensee committed professional misconduct or was incompetent. Otherwise, the Investigations Committee must dismiss the matter.

• Marginal note:Written representations

  (2) The Investigations Committee must consider any written representations made by the licensee under section 38 before the conclusion of the investigation.

• Marginal note:Notice of application or dismissal

  (3) The Investigations Committee must, in writing, notify the licensee and any complainant of the application or dismissal and, in the case of dismissal, the reasons for it.

• Marginal note:Limitation

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

Marginal note:Withdrawal of application

50 The Investigations Committee may withdraw an application to the Discipline Committee only if the Investigations Committee is no longer satisfied that there is sufficient evidence that the licensee has committed professional misconduct or was incompetent.

Disciplinary Proceedings

Marginal note:Oral hearing

51 The Discipline Committee must hold an oral hearing for every application made by the Investigations Committee in order to determine whether a licensee committed professional misconduct or was incompetent.

Marginal note:Hearings open to public

52 Except to the extent necessary to protect privileged or confidential information, the hearings of the Discipline Committee are open to the public.

Marginal note:Parties

53 The Investigations Committee and the licensee are parties to the application.

Marginal note:Right of complainant to make submissions

54 If the application results from a complaint, the complainant is entitled to make oral and written submissions to the Discipline Committee.

Marginal note:Powers

• 55 (1) The Discipline Committee has the power

  • (a) to summon and enforce the appearance of persons and compel them to give oral or written evidence on oath and to produce any document or other thing that the Committee considers necessary to decide the application, in the same manner and to the same extent as a superior court of record;

  • (b) to administer oaths; and

  • (c) to accept any evidence, whether admissible in a court of law or not.

• Marginal note:Privileged information

  (2) The Discipline Committee may take any action referred to in subsection (1) with respect to information that is privileged.

Marginal note:Powers before decision

• 56 (1) Before making a decision under section 57, the Discipline Committee may take any action referred to in any of paragraphs 57(3)(a) to (c) if the Discipline Committee is satisfied that it is necessary for the protection of the public.

• Marginal note:Action is provisional

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

  • (a) after the decision on the application is made, unless the action is confirmed in the decision; or

  • (b) if the application is withdrawn.

Marginal note:Decision on application

• 57 (1) After the hearing of an application, the Discipline Committee must decide whether the licensee has committed professional misconduct or was incompetent.

• Marginal note:No professional misconduct or incompetence

  (2) If the Discipline Committee decides that the licensee did not commit professional misconduct or was not incompetent, the Committee must dismiss the application.

• Marginal note:Professional misconduct or incompetence

  (3) If the Discipline Committee decides that the licensee has committed professional misconduct or was incompetent, the Committee may, in its decision,

  • (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 for a period of not more than two years or until specified conditions are met, or both;

  • (d) revoke a licence of the licensee;

  • (e) reprimand the licensee;

  • (f) require the licensee to pay a penalty of not more than $10,000 to the College;

  • (g) require the licensee to pay to the College or any complainant all or a portion of the costs incurred by them during the application before the Committee;

  • (h) require the licensee to reimburse all or a portion of the fees or disbursements paid to the licensee by a client; and

  • (i) take or require any other action that the Committee considers appropriate in the circumstances.

• Marginal note:Decision and reasons in writing

  (4) The Discipline Committee must give its decision and the reasons for it in writing.

• Marginal note:Decision and reasons available to public

  (5) A decision and the reasons for it, other than any privileged and confidential information contained in the decision or reasons, must be made available to the public on the College’s website.