By-laws of the College of Patent Agents and Trademark Agents (SOR/2023-73)

The Board of Directors of the College of Patent Agents and Trademark Agents makes the annexed By-laws of the College of Patent Agents and Trademark Agents under

• (a) section 75Footnote ^a, subsection 76(2)Footnote ^b and sections 87Footnote ^c and 88Footnote ^c of the College of Patent Agents and Trademark Agents ActFootnote ^d; and

  • Return to footnote ^aS.C. 2022, c. 10, s. 291

  • Return to footnote ^bS.C. 2022, c. 10, s. 292

  • Return to footnote ^cS.C. 2022, c. 10, s. 293

  • Return to footnote ^dS.C. 2018, c. 27, s. 247; S.C. 2014, c. 20, s. 366(1)

• (b) section 18 of the College of Patent Agents and Trademark Agents RegulationsFootnote ^e.

  • Return to footnote ^eSOR/2021-129

Ottawa, April 4, 2023

Le président du Conseil d’administration du Collège des agents de brevets et des agents de marques de commerce, Thomas G. Conway Chairperson, Board of Directors College of Patent Agents and Trademark Agents

PART 1

Interpretation

Marginal note:Definitions

1 The following definitions apply in these By-laws.

Act

Act means the College of Patent Agents and Trademark Agents Act. (Loi)

CEO

CEO means the individual appointed by the Board under section 23 of the Act. (premier dirigeant)

CIPO

CIPO means the Canadian Intellectual Property Office and includes the Patent Office and the Office of the Registrar of Trademarks. (OPIC)

class 1 licence

class 1 licence means a patent agent licence issued under subsection 26(1) of the Act or a trademark agent licence issued under subsection 29(1) of the Act that is not a class 2 or class 4 licence. (permis de catégorie 1)

class 2 licence

class 2 licence means a patent agent licence issued under subsection 26(1) of the Act or a trademark agent licence issued under subsection 29(1) of the Act that is subject to the restriction set out in section 47. (permis de catégorie 2)

class 3 licence

class 3 licence means a patent agent in training licence issued under subsection 26(2) of the Act or a trademark agent in training licence issued under subsection 29(2) of the Act. (permis de catégorie 3)

class 4 licence

class 4 licence means a patent agent licence issued under subsection 26(1) of the Act or a trademark agent licence issued under subsection 29(1) of the Act, to an individual who is not practising as a patent agent or a trademark agent and who is not providing any services in that capacity to the public or in connection with their employment. (permis de catégorie 4)

Code

Code means the Code of Professional Conduct for Licensees established under subsection 33(1) of the Act. (Code)

foreign practitioner

foreign practitioner means an individual who is described in subsection 19(1) or 20(1) of the Regulations. (praticien étranger)

professional regulatory body

professional regulatory body means a body that has a statutory duty to regulate a profession, other than under the Act. (organisme de réglementation professionnelle)

Register

Register means the Register of Patent Agents, referred to in section 28 of the Act, or the Register of Trademark Agents, referred to in section 31 of the Act. (registre)

Regulations

Regulations means the College of Patent Agents and Trademark Agents Regulations. (Règlement)

supervisor

supervisor means an individual who is authorized under section 64 to act as the supervisor of a class 3 licensee. (superviseur)

Marginal note:Definition of incompetence

• 2 (1) For the purposes of the Act, incompetence means the failure of a licensee to apply relevant knowledge, skills or judgment in a manner consistent with the standards of competence set out in the Code while practising as a patent agent or trademark agent.

• Marginal note:Definition of professional misconduct

  (2) For the purposes of the Act, professional misconduct means conduct by a licensee that is inconsistent with the standards of professional conduct set out in the Code and that would reasonably be regarded as unprofessional or that may discredit the profession and includes any of the following:

  • (a) contravening the Act, the Regulations, these By-laws or the Code;

  • (b) exhibiting behaviour while practising as a patent agent or trademark agent that tends to bring discredit to the profession or undermines public confidence in it;

  • (c) being convicted of or pleading guilty to an offence described in paragraph 73(d); and

  • (d) being found by a professional regulatory body to have committed professional misconduct or to be incompetent, incapacitated or unfit to practise within the meaning of the statute under which the body made its finding.

PART 2

Organization of the College

Fiscal Year

Marginal note:Fiscal year

3 The fiscal year of the College begins on January 1 and ends on December 31 of the same calendar year.

Annual General Meeting

Marginal note:Notice of meeting

4 At least 60 days before the day on which the annual general meeting is to take place, the CEO must give public notice of the meeting that sets out the date of the meeting, the means of attendance and, if applicable, the location.

Marginal note:Agenda

5 The agenda for an annual general meeting must include the following items:

• (a) the CEO’s presentation of the College’s annual report and audited financial statements;

• (b) the Chairperson’s address to the meeting;

• (c) questions from the licensees to the Board; and

• (d) any additional matter that the Board adds to the agenda.

Board of Directors

Marginal note:Duties of Board

• 6 (1) The Board has the following duties on behalf of the College:

  • (a) on an annual basis, appoint an independent auditor to audit the accounts of the College and approve the audited financial statements;

  • (b) monitor the College’s financial performance;

  • (c) designate any bank listed in Schedule I to the Bank Act as a bank for the College;

  • (d) ensure multi-year financial planning by approving the College’s budgets in advance of each fiscal year;

  • (e) establish and publish an investment policy and appoint an investment dealer, on the recommendation of the CEO;

  • (f) approve terms of reference and a skills matrix for committees of the College;

  • (g) in accordance with the Board’s policies, consult with any working groups that the Board establishes to assist with its duties and functions; and

  • (h) ensure that the College’s and CEO’s actions are compliant with all legal requirements.

• Marginal note:Duties of Board — CEO

  (2) The Board has the following duties with respect to the CEO:

  • (a) provide direction to the work of the CEO by establishing performance expectations, providing regular performance reviews and undertaking succession planning;

  • (b) develop standards, principles and regulatory objectives;

  • (c) establish working groups to assist the CEO in carrying out the CEO’s work;

  • (d) monitor the performance of the CEO and of the working groups; and

  • (e) oversee the CEO’s effectiveness with respect to engagement with members and with the public.

Marginal note:Remuneration

• 7 (1) The College must pay to each director the remuneration set out in Schedule 2.

• Marginal note:Reimbursement of expenses

  (2) Every director is entitled to the reimbursement of reasonable expenses that they incur in performing their duties and functions as directors.

Marginal note:Term of office of elected directors

8 The term of office of each elected director begins at the conclusion of the first annual general meeting following their election and ends on the earlier of

• (a) the day after the third anniversary of the day on which the term began, and

• (b) the conclusion of the fourth annual general meeting following their election.

Election of Directors

Marginal note:Election process to be published

9 The Board must publish the process for the election of directors on the College’s website.

Marginal note:Distribution of elected directors

10 The number of directors elected to the Board is to be divided evenly between patent agents and trademark agents.

Marginal note:Vacancies

11 Each year, the CEO determines if any elected director positions will be vacant at the conclusion of the next annual general meeting. If any positions will be vacant, an election must be held before that meeting to elect the appropriate number of patent agents and trademark agents to satisfy the requirements of section 10.

Marginal note:Election Commissioner

• 12 (1) The Board must, on the recommendation of the CEO, appoint an Election Commissioner to address any issues that arise concerning the election process, including to rule on

  • (a) any dispute concerning the ineligibility of a nominee; and

  • (b) any other dispute that arises during the election period or regarding the election results.

• Marginal note:No review by Board

  (2) A ruling of the Election Commissioner is not reviewable by the Board.

Marginal note:Ineligibility criteria

13 For the purposes of subparagraphs 14(f)(ii) and 17(h)(iii) of the Act, an individual is not eligible to be an elected director if

• (a) in the five years immediately before the day of the election, they have been found to have committed professional misconduct or to be incompetent by the Discipline Committee;

• (b) in the five years immediately before the day of the election, they have been found by a professional regulatory body to have committed professional misconduct or to be incompetent within the meaning of the statute under which the body made its finding;

• (c) they are the subject of an action taken by the Investigations Committee under subsection 37.1(1) of the Act;

• (d) they are the subject of an application to the Discipline Committee by the Investigations Committee under subsection 49(1) of the Act;

• (e) they have already served as a director for a period of six years and, on the date of the election, less than two years have elapsed since the end of that period;

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

• (g) they have not provided the CEO with a declaration regarding conflicts of interest; or

• (h) they have not attended an orientation for prospective candidates for election.

Marginal note:Conflict of interest

14 An individual must not be appointed or elected or continue as a director if doing so would place them in a conflict of interest.

Marginal note:Confirmation of nominations

• 15 (1) The CEO must confirm the eligibility of every nominee to become a candidate for election as a director in accordance with the criteria set out in section 14 of the Act and sections 13 and 14 of these By-laws.

• Marginal note:Disputes about eligibility

  (2) The CEO must refer any dispute about the eligibility of a nominee to the Election Commissioner, who will make a decision regarding the nominee’s eligibility on the basis of the CEO’s reasons and a submission from the nominee.

• Marginal note:Equal number of eligible nominees and positions

  (3) If, at the end of the nominations period, the number of eligible nominees for election is less than or equal to the number of vacant director positions, the CEO is to declare those nominees elected and notify the nominees and the members accordingly.

Marginal note:Notice of withdrawal by candidate

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

Marginal note:Voting

• 17 (1) A licensee whose licence is not suspended is eligible to vote in an election for directors.

• Marginal note:Electronic voting

  (2) Voting during an election of directors is to be done by electronic means.

Marginal note:Disputes concerning election results

• 18 (1) If a candidate asserts that there are reasonable grounds to dispute the validity of the election results, the candidate may file a notice of dispute with the Election Commissioner that must include the procedural defect being alleged.

• Marginal note:Time limit for filing

  (2) The notice of dispute must be filed within five days after the day on which the election results are published on the College’s website.

• Marginal note:Inquiry by Election Commissioner

  (3) The Election Commissioner must hold an inquiry if they find that the notice of dispute demonstrates reasonable grounds to doubt the validity of the election process.

• Marginal note:Report and recommendations

  (4) The Election Commissioner must prepare a written report of their findings and recommendations and submit it to the Board.

Marginal note:Declaration by Board

• 19 (1) The Board may, after reviewing the Election Commissioner’s report and recommendations, take either of the following actions:

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

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

    • (i) declare another candidate to have been elected, or

    • (ii) direct that another election be held.

• Marginal note:Minor procedural defect

  (2) An election result is not invalid based solely on a minor procedural defect.

Marginal note:Removal — elected directors

• 20 (1) The directors may, by resolution, remove an elected director from office for cause if

  • (a) a motion is made to remove the director and at least two-thirds of the directors in attendance at a meeting vote in favour of the removal; and

  • (b) notice of the intention to make the motion is provided to the Board and to the director at least two weeks in advance of the vote on the motion.

• Marginal note:Removal — appointed directors

  (2) The directors may, by resolution, request that the Minister remove an appointed director from office for cause if

  • (a) a motion is made to remove the director and at least two-thirds of the directors in attendance at a meeting vote in favour of the removal; and

  • (b) notice of the intention to make the motion is provided to the Board and to the director at least two weeks in advance of the vote on the motion.