By-laws of the College of Patent Agents and Trademark Agents (Board) (SOR/2021-168)

Marginal note:Ineligibility

32 For the purposes of subparagraphs 14(f)(ii) and 17(h)(iii) of the Act, the ineligibility criteria are the following:

• (a) in the five years immediately preceding the election day, the individual

  • (i) has been found to have committed professional misconduct or been found to be incompetent by the Discipline Committee, or

  • (ii) has been found to have committed professional misconduct or been found to be incompetent by a tribunal of a body that has a statutory duty to regulate a profession;

• (b) the individual is the subject of an application by the Investigations Committee to the Discipline Committee under subsection 49(1) of the Act;

• (c) the individual has served as a director for the six years immediately preceding the election day;

• (d) the individual has not provided a declaration regarding conflicts of interest; and

• (e) the individual has not attended an orientation for prospective candidates, facilitated by the Governance and Nominating Committee.

Marginal note:Dispute

• 33 (1) The CEO must refer a dispute about the ineligibility of a nominee for a position as a board member to the Election Commissioner who, following receipt of the reasons for the CEO’s determination regarding ineligibility and a submission from the prospective nominee, must rule on ineligibility.

• Marginal note:No review by Board

  (2) The ruling of the Election Commissioner is not subject to review by the Board.

Marginal note:Elections electronically

34 Elections for directors are to be held electronically.

Marginal note:Election policy

35 The Board must establish and publish on the College’s website an election policy.

Marginal note:Dispute

• 36 (1) Any dispute that arises during the election period or regarding the election results are to be ruled on by the Election Commissioner.

• Marginal note:Final decision

  (2) The ruling of the Election Commissioner is not subject to review by the Board.

Marginal note:Eligibility to vote

37 A licensee whose licence is not suspended is eligible to vote in an election for directors.

Marginal note:Withdrawal of nominations

38 A candidate who withdraws from an election must give notice in writing to the CEO.

Marginal note:Dispute — validity of election

• 39 (1) If a candidate asserts that there are reasonable grounds to dispute the validity of the election process, the candidate may file a notice of dispute with the Governance and Nominating Committee.

• Marginal note:Inquiry

  (2) If the Committee finds that the notice gives reasonable grounds to doubt the validity of the election process, they must hold an inquiry into the validity of the election process.

• Marginal note:Report and recommendations

  (3) Following its inquiry, the Governance and Nominating Committee must make a report and recommendations to the Board.

Marginal note:Board may declare validity

• 40 (1) After reviewing the report and recommendation of the Governance and Nominating Committee, the Board may

  • (a) declare the election result to be valid; or

  • (b) declare the election result to be invalid and

    • (i) may disqualify an apparently successful candidate and declare another candidate to have been elected, or

    • (ii) direct that another election be held.

• Marginal note:Minor irregularities

  (2) The Board is not to declare an election result invalid based on a minor irregularity with respect to the election process.

Marginal note:Vacancies on the Board

41 If there is a vacancy on the Board for an elected director, the Board may appoint a person with the requisite qualifications to fill the vacancy for the remainder of the term.

Marginal note:Removal — elected director

42 The directors, by a vote of two-thirds, may remove an elected director from office for cause if notice of the intention to make the motion is provided to the Board at least two weeks in advance.

Marginal note:Removal — appointed director

43 The directors, by a vote of two-thirds, may ask that a request to the Minister be made to remove an appointed director from office for cause if notice of the intention to make the motion is provided to the Board at least two weeks in advance.

Marginal note:Ineligibility

44 A director who, without a valid reason, is absent from two consecutive meetings of the Board has met the ineligibility criteria under subparagraph 17(h)(iii) of the Act.

Committees

Marginal note:Committees

45 The committees that assist the Board in the exercise of their functions are the

• (a) committee of the College referred to in section 3 of the College of Patent Agents and Trademark Agents Regulations;

• (b) Governance and Nominating Committee; and

• (c) Audit and Risk Committee.

CEO and Registrar

Marginal note:Duties of CEO

46 The duties of the CEO are to

• (a) maintain accurate minutes of Board meetings and have them approved by the Board and maintained by the College;

• (b) provide leadership, support and strategic advice to the Board to assist it in meeting its obligations;

• (c) manage, coordinate and maintain the College’s operations, administration, finances and organization;

• (d) develop operation and management policies;

• (e) counsel and assist the Board and committees in carrying out their assigned functions;

• (f) engage, direct and supervise employees and contractors of the College and develop succession plans for College staff and contracted functions;

• (g) assist the Board in complying with the Act, regulations, by-laws and policies affecting it;

• (h) act as the spokesperson for the College; and

• (i) perform all other functions and duties as assigned by the Board.

Marginal note:Deputy CEO

• 47 (1) The Board may appoint a Deputy CEO who serves as acting CEO in the CEO’s absence.

• Marginal note:Absence of Deputy CEO

  (2) If the office of CEO becomes vacant and there is no Deputy CEO, the Board must appoint an acting CEO until a new CEO is appointed.

Marginal note:Deputy Registrar

• 48 (1) The Board may appoint a Deputy Registrar who serves as acting Registrar during the Registrar’s absence.

• Marginal note:Absence of Deputy Registrar

  (2) If a vacancy occurs in the office of Registrar and there is no Deputy Registrar, the Board must, as soon as feasible, appoint an acting Registrar until a new Registrar is appointed.

Marginal note:Duties of Registrar

• 49 (1) The Registrar establishes regulatory policies on their own initiative or at the request of the Board or one of the committees.

• Marginal note:Policies

  (2) The Registrar must publish the regulatory policies on the College’s website.

Registers

Marginal note:Personal information

50 The Registrar may remove any of a licensee’s personal information from the Registers under sections 28 or 31 of the Act.

Obligations of Licensees

Marginal note:Information to be provided

51 A licensee must advise the Registrar in writing if the licensee

• (a) is served with an application for a bankruptcy, makes an assignment of property for the benefit of creditors or presents a proposal in bankruptcy to creditors under the Bankruptcy and Insolvency Act;

• (b) has had a judgment entered against them by a court;

• (c) is personally subject to an order for costs;

• (d) is charged with, pleads guilty to or is found guilty of any offence under the Criminal Code, the Controlled Drugs and Substances Act, the Income Tax Act, the Excise Tax Act or under a provincial securities act;

• (e) has been found to have committed professional misconduct or been found to be incompetent by a tribunal of a body that has a statutory duty to regulate a profession.

Marginal note:Class 1 requirements

52 On or before March 31 of each year, a licensee who holds a class 1 licence must

• (a) pay to the College the applicable fee set out in item 1 or 2 of the schedule;

• (b) file with the Registrar the Annual Licensee Report; and

• (c) provide the Registrar with proof of professional liability insurance or proof of exemption from that insurance.

Marginal note:Annual Licensee Report

53 The Annual Licensee Report must contain

• (a) the licensee’s mailing address, civic address, email address, telephone number, firm name and address, language proficiency for the delivery of patent or trademark services, areas of practice and the approximate percentage by time or billings associated with each area;

• (b) the licensee’s continuing professional development plans; and

• (c) the name of the licensee’s insurer and the policy number of the licensee’s professional liability insurance or the reason for the licensee’s exemption.

Marginal note:Class 2 requirement

54 A licensee who holds a class 2 licence must pay to the College the fee set out in item 5 of the schedule on or before March 31 of each year.

Marginal note:Class 3 requirements

55 On or before the anniversary each year of the effective date of their licence, a licensee who holds a class 3 licence must

• (a) pay to the College the fee set out in item 7 of the schedule and, in the case of the second or subsequent anniversary, the fee set out in item 8 of the schedule; and

• (b) provide the Registrar with either the name of the insurer that has insured them against professional liability and their insurance policy number or proof that they are exempt from the requirement to be so insured and the reason for the exemption.

Marginal note:Professional liability insurance

• 55.1 (1) The following licensees are exempt from the requirement under subsection 34(1) of the Act to be insured against professional liability:

  • (a) class 2 licensees; and

  • (b) licensees who are employed by a corporation, including a municipal corporation, or a trust, partnership, sole proprietorship, joint venture, association, agency or other entity that carries on business in Canada, whether or not for profit, and are working as licensees within the scope of that employment.

• Marginal note:Requirements

  (2) The professional liability insurance that must be maintained by a licensee under subsection 34(1) of the Act must

  • (a) be issued by a company licensed in Canada;

  • (b) cover claims made in and outside Canada;

  • (c) indemnify the licensee for any civil liability that arises from the licensee acting as a patent agent or trademark agent, as the case may be; and

  • (d) have coverage limits of no less than $1 million per claim and $2 million aggregate per year.

Marginal note:Registrar may extend

56 The Registrar may, having regard to the specific circumstances of the licensee, extend the deadline for payment of fees by any class of license or filing of the Annual Licensee Report by class 1 licensees.

Suspension and Revocation

Marginal note:Notification

• 57 (1) Notification under subsection 35(2) of the Act must be given to the licensee at least seven days in advance of the suspension of the licence takes effect and must contain the reasons for the suspension.

• Marginal note:Reinstatement

  (2) The Registrar must reinstate a person whose licence has been suspended if the person corrects the matter that resulted in the suspension and pays to the College the fee set out in item 16 of the schedule within two years after the day on which the licence was suspended.

• Marginal note:Suspension more than two years

  (3) A person whose licence has been suspended for more than two years may apply to have their licence reinstated if they

  • (a) correct the matter that resulted in the suspension;

  • (b) pay to the College the fee set out in item 16 of the schedule; and

  • (c) complete the required continuing professional development requirements.

Marginal note:Revocation

58 For the purposes of subsection 35(4) of the Act, the Registrar must revoke a licence that has been suspended for at least five consecutive years by providing notice to the licensee’s last known email address 30 days before the day on which the revocation takes effect.

Surrender

Marginal note:Request to surrender

• 59 (1) An application to surrender a licence under section 36 of the Act is to be made by providing the following information to the Registrar and by paying to the College the fee set out in item 15 of the schedule and any other outstanding fees owed by the licensee:

  • (a) current and, if applicable, future contact information;

  • (b) the licensee’s professional employment history;

  • (c) confirmation in writing

    • (i) that all client matters have been completed or that arrangements have been made to the satisfaction of the licensee’s clients to have the client’s files returned to the client or transferred to another licensee,

    • (ii) that any matters in progress at the Canadian Intellectual Property Office have been assigned to another licensee and the office has been advised in writing of the successor licensee, and

    • (iii) of the location of the files from the licensee’s practice.

• Marginal note:Surrender

  (2) If the Registrar is satisfied that the information they received is sufficient and has confirmed that the applicant is not the subject of a complaint or an investigation under section 37 of the Act, or an application under paragraph 32(b), the Registrar must accept the surrender and set the effective date of surrender.