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

Act current to 2022-09-11 and last amended on 2022-06-23. Previous Versions

Investigations (continued)

Duty to Investigate (continued)

Marginal note:Notice to licensee

 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

  •  (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

 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

  •  (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

 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

  •  (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

  •  (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

  •  (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

  •  (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

  •  (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

  •  (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

  •  (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

  •  (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.

 
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