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

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  • (b) if the application is withdrawn.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.