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

Short Title

Marginal note:Short title

1 This Act may be cited as the College of Patent Agents and Trademark Agents Act.

Interpretation and Application

Marginal note:Definitions

2 The following definitions apply in this Act.

Board

Board means the board of directors established under section 13. (conseil)

College

College means the College of Patent Agents and Trademark Agents established by section 5. (Collège)

investigator

investigator means an individual designated under section 42. (enquêteur)

licence

licence means a licence issued under this Act. (permis)

licensee

licensee means a patent agent or a trademark agent. (titulaire de permis)

Minister

Minister means the federal minister designated under section 4. (ministre)

patent agent

patent agent means an individual who holds a patent agent licence or a patent agent in training licence issued under section 26. (agent de brevets)

privileged

privileged means protected by litigation privilege, by solicitor-client privilege, by the professional secrecy of advocates and notaries or by the privilege set out in section 16.1 of the Patent Act or section 51.13 of the Trademarks Act. (protégé)

Registrar

Registrar means the Registrar of the College appointed under section 22. (registraire)

trademark agent

trademark agent means an individual who holds a trademark agent licence or a trademark agent in training licence issued under section 29. (agent de marques de commerce)

Marginal note:Binding on Her Majesty

3 This Act is binding on Her Majesty in right of Canada or a province.

Marginal note:Designation of Minister

4 The Governor in Council may, by order, designate any federal minister to be the Minister for the purposes of this Act.

Establishment and Organization

College

Marginal note:Establishment

• 5 (1) A corporation without share capital is established, to be known as the College of Patent Agents and Trademark Agents.

• Marginal note:Act not applicable to College

  (2) Subject to any regulations made under paragraph 76(1)(a.1), the Canada Not-for-profit Corporations Act does not apply to the College.

Marginal note:Purpose

6 The purpose of the College is to regulate patent agents and trademark agents in the public interest, in order to enhance the public’s ability to secure the rights provided for under the Patent Act and the Trademarks Act.

Marginal note:Head office

7 The head office of the College is to be in the National Capital Region, as described in the schedule to the National Capital Act.

Marginal note:Capacity

8 In carrying out its purpose, the College has the capacity and the rights, powers and privileges of a natural person, including the power to

• (a) purchase or otherwise acquire, or lease, any real or personal property or immovable or movable;

• (b) sell or otherwise dispose of, or lease, any of its acquired or leased property; and

• (c) borrow money.

Marginal note:Not Crown agent

9 The College is not an agent of Her Majesty, and the College’s directors, the members of its committees, the Registrar, the investigators and any officers, employees, agents and mandataries of the College are not part of the federal public administration.

Marginal note:Official Languages Act

10 The Official Languages Act applies to the College.

Marginal note:Members

11 The members of the College are the licensees.

Marginal note:Annual general meeting

12 The College must hold an annual general meeting of members within six months after the end of each calendar year, at a time and place in Canada fixed by the Board.

Board of Directors

Marginal note:Composition

• 13 (1) The College has a board of directors composed of at least seven directors, including the Chairperson.

• Marginal note:Order fixing number of directors

  (2) The Minister must, by order, fix the number of directors.

• Marginal note:Appointed directors

  (3) The Minister may, by order, fix the number of directors that are to be appointed to the Board and appoint those directors.

• Marginal note:Maximum number of appointed directors

  (4) The number of appointed directors fixed under subsection (3) must not be greater than the minimum number that is required to constitute a majority of directors on the Board.

• Marginal note:Elected directors

  (5) The remaining directors are to be licensees elected in accordance with the by-laws, and at least one elected director must be a patent agent and at least one must be a trademark agent.

Marginal note:Ineligibility

14 An individual is not eligible to be appointed or elected as a director if they

• (a) are less than 18 years of age;

• (b) have the status of bankrupt;

• (c) are a member of an association whose primary purpose is to represent the interests of persons who provide advice on patents or trademarks;

• (d) were, within the preceding 12 months, a member of a governing body or a steering committee of an association referred to in paragraph (c);

• (e) in the case of an appointment to the Board,

  • (i) are a licensee, or

  • (ii) are employed by a department, as defined in section 2 of the Financial Administration Act; or

• (f) in the case of election to the Board,

  • (i) have a licence that is suspended, or

  • (ii) meet any other ineligibility criteria set out in the by-laws.

Marginal note:Term

• 15 (1) Each director is to be appointed or elected for a term of not more than three years, and may be reappointed or re-elected for subsequent terms of not more than three years each.

• Marginal note:Determination of term

  (2) The length of a director’s term is

  • (a) set out by the Minister in the order appointing the director, if the director is appointed; or

  • (b) determined in accordance with the by-laws, if the director is elected.

• Marginal note:Staggered terms

  (3) For greater certainty, it is not necessary that all directors hold office for terms that begin or end on the same day.

• Marginal note:Continuation in office — appointed directors

  (4) Despite subsection (1) and subject to section 17, an appointed director continues to hold office until they are re-appointed or their successor is appointed.

• Marginal note:Vacancies during term

  (5) If an elected director has ceased to hold office before the expiry of their term, the Board may, in accordance with the by-laws, appoint an individual to fill that vacancy for the unexpired portion of that term or for any shorter period that the Board fixes.

Marginal note:Removal — appointed directors

• 16 (1) An appointed director holds office during good behaviour and may be removed for cause by the Minister.

• Marginal note:Removal — elected directors

  (2) An elected director may be removed in accordance with the by-laws.

Marginal note:Ceases to be director

17 A director ceases to be a director if they

• (a) die;

• (b) resign;

• (c) become bankrupt;

• (d) become a member of an association whose primary purpose is to represent the interests of persons who provide advice on patents or trademarks;

• (e) become a member of a governing body or a steering committee of an association referred to in paragraph (d);

• (f) are removed from office under section 16;

• (g) in the case of an appointed director,

  • (i) become a licensee, or

  • (ii) become an employee of a department, as defined in section 2 of the Financial Administration Act; or

• (h) in the case of an elected director,

  • (i) have a licence that is suspended,

  • (ii) cease to be a licensee, or

  • (iii) meet the ineligibility criteria set out in the by-laws.

Marginal note:Remuneration

18 The College may pay to the directors the remuneration and expenses that are determined in accordance with the by-laws.

Marginal note:Chairperson

• 19 (1) The Chairperson is to be elected by the Board from among the directors in accordance with the by-laws.

• Marginal note:Duties

  (2) The Chairperson presides over meetings of the Board and performs any other duties that are assigned to the Chairperson by the by-laws.

• Marginal note:Removal

  (3) The Board may remove the Chairperson in accordance with the by-laws.

Marginal note:Meetings

• 20 (1) The Board must hold a meeting at least once every calendar year.

• Marginal note:Open to public

  (2) Subject to the by-laws, meetings of the Board are open to the public.

Marginal note:Power to act on College’s behalf

20.1 For the purposes of this Act, the Board may act on the College’s behalf and may, by by-law, authorize the College’s directors, the members of its committees, the Registrar, the investigators and any officers or employees of the College to act on behalf of the College.

Committees, Registrar and Chief Executive Officer

Marginal note:Investigations Committee and Discipline Committee

• 21 (1) Two committees of the College are established, to be known as the Investigations Committee and the Discipline Committee.

• Marginal note:Appointment

  (2) The members of each committee are to be appointed by the Board in accordance with the regulations.

• Marginal note:Limitation

  (3) An individual is not permitted to be a member of either committee if

  • (a) they are a member of an association whose primary purpose is to represent the interests of persons who provide advice on patents or trademarks; or

  • (b) they are a member of a governing body or a committee of an association referred to in paragraph (a).

• Marginal note:Limitation

  (4) An individual is not permitted to be a member of the Discipline Committee and the Investigations Committee at the same time.

Marginal note:Registrar

• 22 (1) The Board must appoint a Registrar of the College, who is responsible for the Register of Patent Agents and the Register of Trademark Agents.

• Marginal note:Delegation

  (2) Subject to the regulations, the Registrar may delegate any of the powers, duties and functions conferred on the Registrar under this Act.

Marginal note:Chief Executive Officer

23 The Board may appoint a Chief Executive Officer, who is responsible for the College’s day-to-day operations.

Immunity

Marginal note:Responsibility for damages — directors and others

23.1 No action or other proceeding for damages lies or may be instituted against any of the following persons for anything done or omitted to be done in good faith in the exercise or purported exercise of any power, or in the performance or purported performance of any duty or function, conferred on that person under the Act:

• (a) a current or former director of the Board;

• (b) a current or former member of a committee of the College;

• (c) the Registrar or a former Registrar;

• (d) a current or former investigator;

• (e) a current or former officer, employee, agent or mandatary of the College; and

• (f) a person who is or has been engaged by the College.

Marginal note:Right of indemnification

23.2 The College must indemnify the persons referred to in section 23.1 against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by them in respect of any civil, criminal, administrative or other proceeding in which they are involved for anything done or omitted to be done in good faith in the exercise or purported exercise of any power, or in the performance or purported performance of any duty or function, conferred on that person under the Act.

Marginal note:Responsibility for damages — complainant or others

23.3 No action or other proceeding for damages lies or may be instituted against a person for disclosing any information or document to the College or to an investigator in good faith, or for making a complaint about a licensee to the College in good faith.

Powers of Minister and Report

Marginal note:Powers of Minister

• 24 (1) The Minister may

  • (a) review the Board’s activities and require the Board to provide reports and information, other than privileged information, to the Minister; or

  • (b) require the Board to do anything — including to make, amend or repeal a regulation or by-law — that, in the Minister’s opinion, is advisable to carry out the purposes of this Act.

• Marginal note:Deemed best interests

  (2) Compliance by a director of the Board with a requirement of the Minister is deemed to be in the best interests of the College.

Marginal note:Annual report

• 25 (1) On or before March 31 of each year, the College must submit to the Minister a report on the College’s activities during the preceding calendar year.

• Marginal note:Tabling report

  (2) The Minister must cause a copy of the report to be tabled in each House of Parliament on any of the first 15 days on which that House is sitting after the day on which the Minister receives it.

Licensees

Patent Agents

Marginal note:Patent agent licence

• 26 (1) On application, the Registrar must issue a patent agent licence to an individual who meets the requirements under the regulations.

• Marginal note:Patent agent in training licence

  (2) On application, the Registrar must issue a patent agent in training licence to an individual who meets the requirements under the regulations.

• Marginal note:Conditions

  (3) A licence issued under this section is subject to any conditions imposed under this Act.

Marginal note:Representation before Patent Office

27 Subject to any restrictions imposed under this Act, a patent agent whose licence is not suspended is entitled to represent persons in the presentation and prosecution of applications for patents or in other business before the Patent Office.

Marginal note:Register

• 28 (1) The Register of Patent Agents must include the following information:

  • (a) the name and contact information of every patent agent and the name and contact information of any firm of which the patent agent is a member;

  • (b) for every patent agent, any conditions that are imposed on their licence under this Act and any restrictions that are imposed under this Act on their entitlement to provide representation;

  • (c) in the case of a patent agent whose licence is suspended, an indication that their licence is suspended and the date on which it was suspended;

  • (d) for every patent agent, all disciplinary measures imposed on them by the Discipline Committee;

  • (e) the name of every individual whose patent agent licence or patent agent in training licence was surrendered or revoked; and

  • (f) any other information required by the regulations or by-laws.

• Marginal note:Updated information

  (2) The Registrar must ensure that the information included in the Register is updated in a timely manner.

• Marginal note:Available to public

  (3) The Register must be made available to the public on the College’s website in a searchable format.

• Marginal note:Information for Commissioner of Patents

  (4) The Registrar must provide the Commissioner of Patents, within the time and in the form and manner that are specified by the Commissioner, with the most recent information referred to in paragraph (1)(a), other than information relating to a patent agent whose licence is suspended.

Trademark Agents

Marginal note:Trademark agent licence

• 29 (1) On application, the Registrar must issue a trademark agent licence to an individual who meets the requirements under the regulations.

• Marginal note:Trademark agent in training licence

  (2) On application, the Registrar must issue a trademark agent in training licence to an individual who meets the requirements under the regulations.

• Marginal note:Conditions

  (3) A licence issued under this section is subject to any conditions imposed under this Act.

Marginal note:Representation before Office of the Registrar of Trademarks

30 Subject to any restrictions imposed under this Act, a trademark agent whose licence is not suspended is entitled to represent persons in the presentation and prosecution of applications for the registration of trademarks or in other business before the Office of the Registrar of Trademarks.

Marginal note:Register

• 31 (1) The Register of Trademark Agents must include the following information:

  • (a) the name and contact information of every trademark agent and the name and contact information of any firm of which the trademark agent is a member;

  • (b) for every trademark agent, any conditions that are imposed on their licence under this Act and any restrictions that are imposed under this Act on their entitlement to provide representation;

  • (c) in the case of a trademark agent whose licence is suspended, an indication that their licence is suspended and the date on which it was suspended;

  • (d) for every trademark agent, all disciplinary measures imposed on them by the Discipline Committee;

  • (e) the name of every individual whose trademark agent licence or trademark agent in training licence was surrendered or revoked; and

  • (f) any other information required by the regulations or by-laws.

• Marginal note:Updated information

  (2) The Registrar must ensure that the information included in the Register is updated in a timely manner.

• Marginal note:Register available to public

  (3) The Register must be made available to the public on the College’s website in a searchable format.

• Marginal note:Information for Registrar of Trademarks

  (4) The Registrar must provide the Registrar of Trademarks, within the time and in the form and manner that are specified by the Registrar of Trademarks, with the most recent information referred to in paragraph (1)(a), other than information relating to a trademark agent whose licence is suspended.

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.

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.

Marginal note:Notice to Registrar

• 58 (1) The Discipline Committee must provide a copy of every decision made under section 57 to the Registrar.

• Marginal note:Notice to licensees — revocation or suspension

  (2) The Registrar must notify all licensees of every decision made under subsection 57(3) to revoke or suspend a licence.

• Marginal note:Notice to licensees — dismissal of application

  (3) The Registrar must, if requested by the licensee who was the subject of an application to the Discipline Committee that was dismissed, notify all licensees of the dismissal.

Marginal note:Appeal to Federal Court

59 A party to an application may appeal a decision of the Discipline Committee made under section 57 to the Federal Court within 30 days after the day on which the decision is made.

Marginal note:Filing of decision in Federal Court

• 60 (1) The College may file in the Federal Court a certified copy of a final decision of the Discipline Committee made under section 57 that is not subject to appeal.

• Marginal note:Effect of filing

  (2) On the certified copy being filed, the decision becomes and may be enforced as an order of the Federal Court.

Marginal note:Suspension lifted if conditions met

• 61 (1) If the Discipline Committee suspends a licence under paragraph 57(3)(c) until specified conditions are met, the Committee must, on application by the licensee, lift the suspension if the Committee is satisfied that the conditions are met.

• Marginal note:Ex parte application

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

• Marginal note:Notice to Registrar

  (3) The Discipline Committee must provide written notice to the Registrar as soon as feasible after it lifts the suspension.

• Marginal note:Revocation by Registrar

  (4) The Registrar may, at any time after the second anniversary of the day on which a licence is suspended under paragraph 57(3)(c) until specified conditions are met and after giving at least 30 days’ written notice to the licensee, revoke the licence if the suspension has not been lifted under subsection (1).

• Marginal note:Notification

  (5) The Registrar must notify the licensee in writing as soon as feasible after their licence is revoked.

Marginal note:Amounts paid as penalty

62 Amounts paid to the College as a penalty under paragraph 57(3)(f) may be expended only for the purpose of supporting the mental health of licensees.

Practice and Procedure

Marginal note:Rules

63 The Investigations Committee and the Discipline Committee may make rules respecting the practice and procedure before them and rules for carrying out their work and for the management of their internal affairs.

Confidentiality

Marginal note:No waiver

64 For greater certainty, the disclosure of privileged information to the College, including to the Investigations Committee or to the Discipline Committee, or to an investigator does not constitute a waiver of the privilege.

Marginal note:No disclosure

• 65 (1) Subject to subsection (2), the following persons must not disclose a complaint received by the College or any privileged or confidential information obtained in the course of an investigation or proceeding under this Act:

  • (a) a current or former director of the Board;

  • (b) a current or former member of the Investigations Committee or of the Discipline Committee;

  • (c) the Registrar or a former Registrar;

  • (d) a current or former investigator;

  • (e) a current or former officer, employee, agent or mandatary of the College;

  • (f) a person who is or has been engaged by the College.

• Marginal note:Exceptions

  (2) A person referred to in subsection (1) may disclose a complaint or information referred to in that subsection if

  • (a) the disclosure is for the purpose of permitting the exercise of powers or the performance of duties or functions under this Act, including in connection with a proceeding under this Act;

  • (b) the information is available to the public;

  • (c) the disclosure is to the person’s legal counsel;

  • (d) the person has obtained the written consent of all persons whose rights or interests might reasonably be affected by the disclosure; or

  • (e) there are reasonable grounds to believe that

    • (i) there is a significant risk of harm to any person if the disclosure is not made, and

    • (ii) making the disclosure is likely to reduce the risk.

• Marginal note:Testimony and production

  (3) A person referred to in subsection (1) is not required, in any proceeding other than a proceeding under this Act,

  • (a) to give testimony on a complaint received by the College or on any privileged or confidential information that the person is prohibited from disclosing under that subsection; or

  • (b) to produce such a complaint or any document or other thing that contains any such privileged or confidential information.

Marginal note:Application for order authorizing disclosure

• 66 (1) The College may apply to the Federal Court for an order authorizing the disclosure of confidential information that would be prohibited by section 65 to a law enforcement agency or other public authority.

• Marginal note:Limitation

  (2) The Court must not make an order if the information is privileged or if it was obtained by the College as a result of a person making, in the course of an investigation or proceeding under this Act, an oral or written statement that may tend to incriminate the person.

• Marginal note:Documents and other things

  (3) An order that authorizes the disclosure of information may also authorize the delivery of documents or other things that are in the possession of the College and that relate to the information.

Prohibitions and Offences

Marginal note:Claiming to be patent agent

67 A person, other than a patent agent whose licence is not suspended, must not

• (a) use the title “patent agent” or a variation or abbreviation of that title, or any words, name or designation, in a manner that leads to a reasonable belief that the person is a patent agent; or

• (b) represent themselves, in any way or by any means, to be a patent agent.

Marginal note:Claiming to be trademark agent

68 A person, other than a trademark agent whose licence is not suspended, must not

• (a) use the title “trademark agent” or a variation or abbreviation of that title, or any words, name or designation, in a manner that leads to a reasonable belief that the person is a trademark agent; or

• (b) represent themselves, in any way or by any means, to be a trademark agent.

Marginal note:Offence and punishment — section 67 or 68

• 69 (1) Every person who contravenes section 67 or 68 is guilty of an offence and liable on summary conviction to a fine of not more than

  • (a) $25,000 for a first offence; and

  • (b) $50,000 for a second or subsequent offence.

• Marginal note:Imprisonment precluded

  (2) If a person is convicted of an offence under subsection (1), no imprisonment is to be imposed as punishment for the offence or in default of payment of any fine imposed as punishment in relation to the offence.

• Marginal note:Due diligence

  (3) A person is not to be found guilty of an offence under subsection (1) if they establish that they exercised due diligence to prevent the commission of the offence.

Marginal note:Unauthorized representation before Patent Office

• 70 (1) Subject to subsection (2) and the regulations, a person must not represent another person in the presentation and prosecution of applications for patents or in other business before the Patent Office.

• Marginal note:Exception

  (2) Subsection (1) does not apply to a patent agent whose licence is not suspended, to legal counsel who is providing legal services as authorized by law or to a person who is part of a class of persons exempted under the regulations.

Marginal note:Unauthorized representation before Office of the Registrar of Trademarks

• 71 (1) Subject to subsection (2) and the regulations, a person must not represent another person in the presentation and prosecution of applications for the registration of trademarks or in other business before the Office of the Registrar of Trademarks.

• Marginal note:Exception

  (2) Subsection (1) does not apply to a trademark agent whose licence is not suspended, to legal counsel who is providing legal services as authorized by law or to a person who is part of a class of persons exempted under the regulations.

Marginal note:Regulations

72 The Governor in Council may make regulations exempting an activity, a class of persons or an activity that is performed by a class of persons from the application of subsection 70(1) or 71(1).

Marginal note:Offence and punishment — section 70 or 71

• 73 (1) Every person who contravenes section 70 or 71 is guilty of an offence and liable on summary conviction

  • (a) for a first offence, to a fine of not more than $25,000 or to imprisonment for a term of not more than six months, or to both; and

  • (b) for a second or subsequent offence, to a fine of not more than $50,000 or to imprisonment for a term of not more than six months, or to both.

• Marginal note:Due diligence

  (2) A person is not to be found guilty of an offence under subsection (1) if they establish that they exercised due diligence to prevent the commission of the offence.

Marginal note:Injunction

74 On application by the College, if the Federal Court is satisfied that a contravention of section 67, 68, 70 or 71 is being or is likely to be committed, the Court may grant an injunction, subject to any conditions that it considers appropriate, ordering any person to cease or refrain from any activity related to that contravention or ordering the person to take any measure that the Court considers appropriate.

By-laws and Regulations

Marginal note:By-laws

• 75 (1) The Board may make by-laws respecting any matter necessary to carry on the activities of the College, including by-laws

  • (a) respecting the election of directors, the terms of elected directors and their removal;

  • (b) establishing ineligibility criteria for the purposes of subparagraphs 14(f)(ii) and 17(h)(iii);

  • (c) respecting the filling of vacancies among elected directors;

  • (d) respecting the remuneration and expenses of directors;

  • (e) respecting the election and removal of the Chairperson of the Board and the Chairperson’s duties;

  • (f) respecting the duties and functions of the Board and the meetings of the Board, including quorum;

  • (f.1) respecting the creation of committees;

  • (g) respecting the conflicts of interest of directors, members of the Investigations Committee and members of the Discipline Committee;

  • (h) respecting the duties and functions of the Registrar;

  • (i) respecting the maintenance of the Register of Patent Agents and the Register of Trademark Agents and information that is required to be included in those Registers;

  • (i.1) defining the terms “professional misconduct” and “incompetence” for the purposes of this Act;

  • (j) respecting the classes of firm in connection with which a licensee may work as a licensee;

  • (k) fixing the annual fee — or the manner of determining the annual fee — that is to be paid by licensees;

  • (l) fixing any other fee — or the manner of determining any other fee — that is to be paid by licensees, including any fee for the late payment of another fee;

  • (m) establishing the time within which and the manner in which any fees or other amounts are to be paid;

  • (n) respecting the information and documents that licensees must provide to the College;

  • (o) respecting continuing professional development requirements for licensees;

  • (p) respecting requirements for licensees to do pro bono work;

  • (q) respecting the professional liability insurance that licensees are required to maintain;

  • (r) exempting licensees from the requirement to be insured against professional liability;

  • (s) respecting the suspension and revocation of licences under section 35;

  • (t) respecting the surrender of licences and applications for a surrender;

  • (t.1) prescribing the circumstances in which the Registrar must not dismiss a complaint or the reasons for which the Registrar must not dismiss a complaint;

  • (t.2) respecting the form and manner in which the Registrar may dismiss a complaint; and

  • (u) respecting the notification of licensees under section 38.

• Marginal note:Different treatment

  (2) The by-laws made under paragraphs (1)(j) to (t) and (u) may distinguish among classes of licensees or licences.

• Marginal note:For greater certainty

  (3) For greater certainty, by-laws made under paragraphs (1)(i.1) to (u) are regulations for the purposes of the Statutory Instruments Act.

Marginal note:Regulations — Governor in Council

• 76 (1) The Governor in Council may make regulations for carrying out the purposes and provisions of this Act, including regulations

  • (a) respecting the Investigations Committee, the Discipline Committee and other committees of the College, including the composition of those committees, the eligibility for membership in them, the terms of the members and their removal;

  • (a.1) respecting the application of any provisions of the Canada Not-for-profit Corporations Act to the College;

  • (a.2) limiting the powers, duties and functions that may be delegated by the Registrar and the persons to whom they may be delegated;

  • (b) respecting the reports and information that must be provided or submitted to the Minister;

  • (c) respecting conditions to be imposed on licences or classes of licences;

  • (d) respecting the requirements that individuals or classes of individuals must meet under section 26 or 29, including requirements in relation to qualifying examinations and in relation to fees with respect to qualifying examinations;

  • (e) respecting what constitutes representation for the purposes of sections 27 and 70 or for the purposes of sections 30 and 71;

  • (f) respecting restrictions on the entitlement of licensees or classes of licensees to provide representation under section 27 or 30;

  • (g) respecting the information to be included in the Register of Patent Agents or the Register of Trademark Agents;

  • (g.1) prescribing the reasons for which the Registrar may dismiss a complaint;

  • (h) respecting the sealing of documents and other things and objections under section 46, including in relation to notifications, the identification of sealed packages, applications to the Federal Court and the retention, opening and return of sealed packages; and

  • (i) respecting the determination of the applicable periods referred to in subsection 47(1).

• Marginal note:Authorization

  (2) Regulations made under paragraph (1)(a.2) may authorize the Board or any committee of the College, and those made under paragraphs (1)(c), (d), (f) and (g) may authorize the Board, the Registrar or any committee of the College, to make by-laws with respect to all or part of the subject matter of the regulations and, for greater certainty, those by-laws are regulations for the purposes of the Statutory Instruments Act.

• Marginal note:Regulations — sealed packages

  (3) Regulations made under paragraph (1)(h) may authorize the Federal Court to make orders respecting the retention, opening or return of sealed packages.

Marginal note:Regulations prevail

77 The regulations prevail over the by-laws to the extent of an inconsistency or conflict between them.

Transitional Provisions

Marginal note:Definition of coming-into-force day

78 In sections 79 to 86, coming-into-force day means the day on which section 13 comes into force.

Marginal note:Initial organization of board

• 79 (1) Before the coming-into-force day, the College’s board of directors is to be composed of five directors appointed by the Minister of Industry.

• Marginal note:Appointment on recommendation

  (2) Two of the directors are to be appointed on the recommendation of the Intellectual Property Institute of Canada, with one to be an individual whose name is on the register kept under section 15 of the Patent Act and the other to be an individual whose name is on the list of trademark agents kept under section 28 of the Trademarks Act.

• Marginal note:Chairperson

  (3) The Minister of Industry must designate a Chairperson from among the directors.

• Marginal note:Deemed election or appointment

  (4) The directors appointed on the recommendation of the Intellectual Property Institute of Canada who hold office on the coming-into-force day are deemed to have been elected under subsection 13(5) on that day, for a term that ends on the earlier of the day on which the first election is held under that subsection and the first anniversary of the coming-into-force day. The other directors who hold office on the coming-into-force day are deemed to have been appointed under subsection 13(3) on that day for a term that ends on the first anniversary of that day.

• Marginal note:For greater certainty

  (5) For greater certainty, section 17 applies as of the coming-into-force day with respect to directors who are deemed to be elected or appointed under subsection (4).

• Marginal note:Removal for cause

  (6) Before the coming-into-force day, a director appointed under subsection (1) may be removed for cause by the Minister of Industry.

• Marginal note:Remuneration

  (7) Before the coming-into-force day, the College may pay the remuneration and expenses that it fixes to the directors.

• Marginal note:Reference to the Board

  (8) Any reference in this Act to the Board is, until the coming-into-force day, a reference to the board of directors as constituted under this section.

Marginal note:Confirmation of by-laws

80 Any by-laws that are made by the Board before the first election is held under subsection 13(5) are repealed on the 180th day after the day on which the first election is held, unless they are confirmed by a resolution of the Board, as it is constituted after that election, before that 180th day.

Marginal note:College not a Crown Corporation

81 Despite Part X of the Financial Administration Act, the College is not a Crown corporation within the meaning of that Act.

Marginal note:Deemed issued patent agent licence

82 An individual is deemed to have been issued a patent agent licence under subsection 26(1) on the coming-into-force day if their name was, on the day before the coming-into-force day, on the register kept under section 15 of the Patent Act.

Marginal note:Deemed issued trademark agent licence

83 An individual is deemed to have been issued a trademark agent licence under subsection 29(1) on the coming-into-force day if their name was, on the day before the coming-into-force day, on the list of trademark agents kept under section 28 of the Trademarks Act.

Marginal note:Provision of information — patents

84 The Commissioner of Patents may, for the purpose of enabling the College or the Registrar to exercise their powers or perform their duties and functions under this Act, provide the Registrar with information relating to an individual or firm whose name is or was on the register kept under section 15 of the Patent Act, an individual who has sat for the qualifying examination for patent agents or an individual who has notified the Commissioner in writing of their intention to sit for the examination, including

• (a) the individual’s or firm’s name and contact information and, in the case of an individual, the name of any firm of which they are a member;

• (b) whether the Commissioner has refused to recognize the individual or firm as a patent agent or attorney under section 16 of the Patent Act;

• (c) any complaints against the individual or firm; and

• (d) the results of any qualifying examinations for patent agents.

Marginal note:Provision of information — trademarks

85 The Registrar of Trademarks may, for the purpose of enabling the College or the Registrar to exercise their powers or perform their duties and functions under this Act, provide the Registrar with information relating to an individual or firm whose name is or was on the list of trademark agents kept under section 28 of the Trademarks Act, an individual who has sat for the qualifying examination for trademark agents or an individual who has notified the Registrar of Trademarks in writing of their intention to sit for the examination, including

• (a) the individual’s or firm’s name and contact information and, in the case of an individual, the name of any firm of which they are a member;

• (b) any complaints against the individual or firm; and

• (c) the results of any qualifying examinations for trademark agents.

Marginal note:Regulations — transitional matters

86 Without limiting the generality of section 76, the Governor in Council may make regulations respecting transitional matters relating to

• (a) qualifying examinations for patent agents and trademark agents;

• (b) the requirements to be met under section 26 by an individual who has sat for the qualifying examination for patent agents before the coming-into-force day or who has, before that day, notified the Commissioner of Patents in writing of their intention to sit for the examination but whose name was not, on the day before that day, on the register kept under section 15 of the Patent Act; and

• (c) the requirements to be met under section 29 by an individual who has sat for the qualifying examination for trademark agents before the coming-into-force day or who has, before that day, notified the Registrar of Trademarks in writing of their intention to sit for the examination but whose name was not, on the day before that day, on the list of trademark agents kept under section 28 of the Trademarks Act.

Marginal note:By-laws

87 All by-laws that are made by the College before the coming into force of this section are deemed to have been made by the Board.

Marginal note:Deemed authority

88 All regulations authorizing the College to make by-laws under subsection 76(2), as it read immediately before the coming into force of this section, are deemed to authorize the Board to make the by-laws.