Table of Contents
| NAME OF POLICY | No. 1 – How CPATA works – Its Principled Approach to Regulation and Governance | ||
| APPLICABLE SECTIONS OF THE ACT, BY-LAWS AND REGULATIONS and/or PURPOSE | Board By-laws | ||
| RESPONSIBILITY | CEO and CFO | ||
| APPROVED BY | EFFECTIVE | REVIEWED | REVISED |
| Board | May 11, 2021 | Oct-Nov 2022 | November 12, 2022 |
1. Introduction and Overview
The Government of Canada enacted the College of Patent and Trademark Agents (CPATA) Act in 2018, as part of its National Innovation Strategy. In 2019 they appointed an interim Board. In the spring of 2020, the Board appointed a CEO.
In 2022, CPATA’s permanent Board took over with five directors appointed by the Minister of Innovation, Science, and Industry and four directors elected by the profession.
This policy describes how CPATA operates as a new, state of the art public interest regulator of the intellectual property professions. It should assist the Board, committee members, CEO, staff, decision-makers, licensees, and the public to understand how CPATA works. Because CPATA, as an independent professional regulator, differs from many ‘self-governing’ regulators of professions in Canada and elsewhere, documenting the form of operation is crucial. It will ensure we maintain the approaches incorporated in CPATA as a start-up, that we maintain this form of operation and not default to other structures that some might assume apply because they are used by other regulators.
This is part of a suite of documents providing parameters for how we operate. This document knits together our approach, while other documents explain the full range of College operations1 . This document is not authoritative; the authoritative documents are the statute, regulations, by-laws, and policies.
What is CPATA?
CPATA is the regulator of Patent and Trademark agents in Canada. If someone wants to hold themselves out as a patent or trademark agent, or if they want to act on behalf of clients in dealing with the Canadian Intellectual Property Office (where patents and trademarks are registered), they must be a licensee of CPATA. It is unique as a national regulator; there are no provincial regulators of patent and trademark agents2
What does CPATA do?
We ensure people entering the profession meet our standards for professional competence and ethics. To do that we:
- Set competency standards for those who want to be licensed as an agent Require trainee agents to work with an experienced agent for two years and administer qualifying examinations to ensure applicants meets our entry level competence standards.
- We annually renew patent or trademark licenses. License fees fund our operations.
We set ethical and practice standards for agents and enforce them through a variety of techniques, including advisory and support services, and a complaints and discipline system if necessary.
We require licensees to have professional liability insurance, and we will require them to take appropriate steps to demonstrate they remain competent (continuing professional development).
We will work with the profession to encourage equity and diversity in the profession, to make the services of agents more widely available to support innovation in the Canadian economy, and to support innovation in the way patent and trademark agents do their work, and the way intellectual property rights are protected in Canada.
Who’s In Charge?
The College has a Board of Directors, committees, and a CEO/Registrar and staff.
The Board has 9 members: 5 are appointed by the Federal Minister; four are elected by 2,500 licensees.
The Board is responsible to see that CPATA performs the role described in the Act. They do so by instructing the CEO, and then monitoring what CPATA is doing, and most importantly, what CPATA is accomplishing.
The Board gives its primary instructions by enacting by-laws and policies; it adopts annual business plans and budgets, and a strategic plan and organizational values. The by-laws sort out who does what, and generally flesh out the business and governance rules. The Board has enacted Regulatory Objectives, Standards and Principles that prescribe what we, as a regulator, do and how we do it: They are described in more detail later in this document.
The Board’s instructions are carried out by the CEO/Registrar, who employs the staff, and by 3 Board committees.
The Regulatory Committees (Registration, Investigations and Discipline) are independent and carry out their roles without direct Board oversight. Most of CPATA’s work is done by the CEO/Registrar and staff. They handle interactions with licensees, trainees, and members of the public.
CPATA’s six committees are:
Regulatory Committees
- The Registration Committee– responsible for fair regulatory decisions. If the Registrar makes a decision and a trainee or licensee disagrees, they can have that decision reviewed by the Registration Committee.
- The Investigation and Discipline Committees– when concerns arise about whether an agent is acting ethically or competently: these concerns cannot be resolved or addressed at an early stage by the Registrar; and there is evidence of professional misconduct or professional incompetence, the matter will be investigated and referred to the Investigations Committee. If appropriate, that Committee will then refer a complaint to the Discipline Committee for formal adjudication.
Board Committees
- The Audit and Risk Committee– assists the Board by working with staff in dealing with financial management, and the assessment and management of enterprise and regulatory risks and the annual audit.
- The Governance Committee – assists the Board to bring best governance practices to all areas of the Board and committee work including evaluation of Board and committee performance
- The Nominating and Board Development Committee– – assists the Board in its succession role by working with government on nominating Board members for appointment, overseeing the process for electing Board members from among the licensees, and nominating committee members to be appointed by the Board. The Committee establishes training and continuing development opportunities for the Board and committees
We may set up additional committees as we deal with new issues.
How we are different?
CPATA is a new regulator. It has not grown out of another organization. We have built our policies, procedures, and practices from the ground up.
Most of our directors and members of the regulatory committees are not licensees. This flows from our mandate to protect the public interest. It brings a wide range of skills to the board table and keeps us in touch with our public interest mandate and enhances the transparency of our work.
We are results oriented. The CEO has the responsibility to operate regulatory programs, and then report to the Board. Together they determine whether those programs are creating the outcomes specified by the Board.
We are driven by a set of policies designed to result in high quality regulation. We have studied the best-in-class regulators in the world and modelled our regulatory practices and operations after those regulators.
We are professionally managed. Regulating the profession is important work and requires staff with the appropriate experience and expertise in professional services regulation.
We are committed to consulting with stakeholders, so we understand the impact and results of our plans or regulatory decisions, including the policies we put in place.
We are national; because patents and trademarks are a federal government responsibility, so too is the regulation of the agents licensed to deal with the CPIO.
We are bi-lingual and carry out all activities in both official languages and serve the profession and the public in their official language of choice.
We are virtual – our primary mode of doing business is virtual. We do not have a central office. Most of our meetings will be held on-line. Our Board meetings are broadcast and recorded, with all materials remaining available for access by the profession or public.
2. The regulatory model
CPATA is a modern, risk-based and outcomes focused regulator. Its approach to being modern is summarized in its commitment to applying ‘Right Touch Regulation3
to all its regulatory activities. In essence CPATA’s approach to regulation is to regulate using only the means necessary to address the risks or other issues identified as requiring College intervention. That describes the ‘risk-based’ approach. Outcomes focus means CPATA intends to report on its work in ways that demonstrate what difference it makes and how its regulatory actions result in change.4
How the work gets done
By-laws and Policies define the mandates and processes for regulatory programs, including entry to licensure, and continuing licensure. Three key Board policies describe:
- what is to be accomplished by CPATA (the Regulatory Objectives),
- the activities of CPATA and how we carry out those programs (the Regulatory Standards), and
- how CPATA makes regulatory decisions (the Regulatory Principles).
Together, these policies describe what to do, and provide a form of ‘code of conduct’ for our operation.
The Act sets up CPATA and creates its mandate. It describes in some detail the keeping of the official registers of licensees, and the structures and processes for dealing with complaints and hearings about professional conduct. The Regulations, enacted by Order-in-Council set criteria for some regulatory obligations, such as licensure.
The Registrar and staff carry primary responsibility for regulatory transactions with trainees, licensees, and the public in accordance with the Regulations and By-laws. This includes registration of trainees and licensees, all record keeping including the Register of agents, the administration and content of competency assessments, annual renewal of licenses including payments, and receiving complaints and statements of concern about the conduct of licensees or trainees. Registration decisions can be reviewed by the Registration Committee, at which CPATA may be represented by staff or by counsel instructed by the CEO/Registrar or delegate.
Concerns about licensee conduct that cannot be consensually resolved or addressed at an early stage and raise issues of possible misconduct or incompetence must be referred to the Investigations Committee, under the appropriate guidance documents. The Investigations Committee will decide whether to refer to the Discipline Committee for adjudication.
The Investigations and Discipline Committees are responsible for their roles as described in the Act, and policies they adopt. Recent amendments to the Act enable the Registrar to review matters at intake to determine if they constitute a complaint to be referred to the Investigations Committee.
The Registration Committee hears reviews from registrants, trainees and licensees who disagree with a decision of the Registrar.
CPATA main activities include:
- Registration & Accreditation – setting competence standards and assessing them, managing licensee status
- Professional Responsibility – Complaints and Discipline, the Code of Professional Conduct (including ethics education)
- Mandatory Professional Liability Insurance
- Governance, including elections and appointments to the Board, and appointments to Committees and building a solid structure to support an independent regulator
Future work may include:
- Promoting innovation and IP Practice
- Continuing competence and professional development
- Quality Assurance reviews (will likely require legislative amendments)
- Practice Standards development and advice
- Supporting pro bono activities by licensees to broaden availability of IP services to Canadians
The By-laws mandate additional committees and describe how they are appointed, how vacancies might occur and how they are filled. Specific competencies, skills and attributes are required for committee members, as well as a mix of public representatives and licensees. Details of committee requirements are published in their Terms of Reference and Skills matrices.
Using this documentation as guidance, the work is allocated as follows:
The CEO/Registrar and staff
- support the Board in its oversight, policy direction, stakeholder relations (government, industry, and the profession) and performance measurement (regulatory outcomes and governance);
- administer Board and committee meetings, providing agendas, notices, briefing materials and minutes, researching policy, operational issues, and best practices throughout the world, and providing insight and advice;
- administer elections for Board positions, and recruitment for committee positions, subject to oversight by the Nominating and Governance Committee.
- administer the organization, including all operational policy and operations related to business planning and finance, risk analysis (enterprise and regulatory), information technology, human resource management and compliance with statutory requirements including privacy, access to information, bilingualism, equity and diversity and employment;
- set operational policy for all programs operated by CPATA;
- are responsible for maintenance of CPATA’s web and social media presence, communications strategy, and execution in dealing with the public, stakeholders, and the profession including various forms of consultations.
The Nominating and Board Development and Governance Committees assist the Board by carrying out the role described for them relating to board and committee appointments, elections for Board positions and creating a model of continuous education and improvement for the Board and committees.
The Audit and Risk Committee assists the Board by reviewing management’s budgets, financial plans, and risk analyses.
The Board oversees the operation of CPATA, approves strategic plans, business plans and budgets, evaluates the performance of itself and committees, considers reports describing the extent to which programs of CPATA are achieving the desired outcomes, appoints and supervises the CEO and evaluates the performance of the CEO. In short, the Board ensures that we ‘protect the public interest’.
3. The governance model
The chosen governance model is a policy governance board with the CEO/Registrar as its sole employee.
The CEO and Registrar roles are combined in one person as the Board requires the CEO to be familiar with all aspects of regulation in order to be responsible for both the policy and operational aspects of CPATA. The CEO is responsible for leadership, management, and operations. The Registrar is responsible for maintaining regulatory policies and processes, and for initial regulatory decision-making.
In keeping with the governance model having the CEO as the only employee, the Registrar function is to allow for delegation to a Deputy Registrar, and as necessary to employees or contractors.
What does it mean to protect the public interests?
The Board has adopted Board Policy No. 9 – The Public Interest5 and CPATA Decision-making that details CPATA’s thinking about the public interest and how consideration of public interest factors drives all CPATA decision-making.
4. Detailed Role Descriptions
In this section we describe in greater detail the roles of the various actors in CPATA.
4.1 Who makes policy?
CPATA’s Board has determined it will be a Policy Board. Its authority and key functions are elaborated in the By-laws and can be summarized as: we will make policy decisions that direct the organization, the CEO, and our committees.
We use the term ‘policies’ to refer to different kinds of documents, enacted by different bodies within CPATA.
Board Policies
Policy directions will most often involve articulating an outcome that will require resources to achieve a particular goal. The Board then monitors CPATA’s compliance with those policies, and the achievement of those goals and outcomes. Our governance policies guide how we operate CPATA. Some policies – like the Regulatory Objectives – set goals of what CPATA is to achieve.
Examples of Board Policies that set goals are in the Regulatory Objectives, such as:
“Protect those who use patent and trademark services”.
The Regulatory Standards provide broad directions that guide the operation of CPATA, such as:
‘We are clear about our purpose and open and transparent in all processes: we publish our regulatory requirements, guidance, policies, processes and decisions; we provide accurate accessible information about our licensees; and we report on our performance and outcomes.’
Further examples are found in the Regulatory Objectives, Standards and Principles, and Strategic Goals and Objectives, and will be elaborated on in the corporate values articulated after the first round of strategic planning. The Board also sets other policies such as those related to governance and has supported the CEO’s development of a wide range of finance and operations policies.
CEO/Registrar Policies
The CEO/Registrar make policies compliant with or to further the By-laws and Board Policies. These can be administrative policies (such as human resource policies, or those related to using IT resources), or policies related to the design and operation of a particular program. For example, a program policy might describe a trainee testing program, including how it will operate, its goals, means of achieving those goals, limitations, performance targets, etc.
Within the published policies are procedures or the detailed description of the steps to be taken for a business process of CPATA. Examples include the steps to be taken to register for entrance examinations, to become a trainee or licensee, or to renew a license annually.
Procedures describe what is to be done, and the detailed steps to be taken. The steps may be performed by someone inside CPATA, such as an employee, or by someone outside the organization, such as a licensee, trainee, or complainant. Because procedures are operational, establishing them is within the authority of the CEO/Registrar. Processes and procedures are always required to comply with or be subservient to the By-laws.
There may be ambiguity about whether a policy is properly the purview of the CEO/Registrar or the Board. While on a purely technical analysis the CEO/Registrar is free to make any policy provided it fits within the policy framework already articulated by the Board, the CEO may wish to inform the Board of the policy they plan or tell the Board after the decision has been taken. The challenge is to not burden the Board with administrative detail or invite the Board into operations, while recognizing that what the CEO/Registrar sees as administrative may been seen by others as substantive or a change of direction.
4.2 The Board’s role
The Board’s five appointed directors are named by the Minister; they cannot be licensees. The Directors elected from among the licensees are not permitted to be members of any organization that advocates on behalf of patent or trademark agents. The terms of the elected directors is three years; the terms of the appointed directors is at the discretion of the Minister but is anticipated 3-year terms will be the norm.
CPATA’s by-laws, enacted by the Board, prescribe the Board’s roles and responsibilities. They are summarized here for explanatory purposes.
Most requirements are carried out with the assistance, support and advice of the CEO/Registrar and are detailed in Board Policy No. 5 – Executive Expectations of the Chief Executive Officer.
The Board’s obligations are prescribed in the Board By-laws, and in particular by-law 8. The Board’s responsibilities under the By-laws and good governance practices are:
Supervise the organization
- Appoint a CEO and provide clear directions to and oversee the work of the CEO with established performance expectations, succession planning and periodic and regular performance review;
- Monitor Board and committee performance, determine the nature of Board evaluation, and ensure it takes place at least annually.
Determine regulatory policy
- Adopt Regulatory Objectives, Regulatory Standards and Regulatory Principles;
- Determine frequency of review of policies, including an evaluation of whether the policies are successful, and ensure those reviews are carried out;
Governance
- Ensure effective governance through policies related to its work, assessment of organizational performance and commitment to succession planning;
- Elect the Chair and Vice-Chair;
- Working with the CEO, establish a future vision for CPATA and policies and plans, including a strategic plan, related to regulatory and program effectiveness and quality;
- Establish Board committees, task forces or working groups to assist in carrying out the work of the Board;
- Develop competencies specification for Board members; specify process for those elected from the licensees, including oversight; collaborate with Government of Canada on appointment of Board members;
Financial Oversight
- Provide stewardship over CPATA’s resources:
- Ensure effective business and financial planning,
- Approve annual business plans, operating and capital budgets,
- Set fees;
- Monitor financial performance,
- Appoint an independent auditor and oversee an independent financial audit (delegated to the Audit and Risk Committee) and approve audited financial statements.
Oversight
- Monitor and comment on the regulatory and operational risks for CPATA, and ensure decisions and policies focus on the management and mitigation of risk of harm to the public;
- Oversee effective internal and external stakeholder relations and engagement;
- Oversee compliance with all legal requirements of CPATA, the CEO and the Board;
- Monitor operations through reports from the CEO or others describing compliance with policies;
- Monitor the extent to which CEO is achieving established performance criteria for operations;
- Monitor the extent to which organizational goals are being achieved, including desired/specified outcomes;
- Decide when and what may be subject to compliance audits (not only financial, but also CEO and others’ compliance with policies);
Miscellaneous
- Address matters assigned to it by the Act and by-laws, and as assigned by the Minister;
- Undertake such other matters as the Board considers necessary to achieve the purposes of CPATA.
The Board Chair is elected from the Directors. They chair all meetings unless unavailable or conflicted, work with the CEO to set agendas, act as a key linkage between the CEO and the Board (although not as supervisor of the CEO) and is responsible to see the evaluation of the CEO takes place each year (delegated to the Governance Committee). On occasion the Chair speaks on behalf of CPATA and/or the Board, and is, along with the CEO, a resource for Board members.
4.3 The CEO’s and Registrar’s roles
The CEO and the Registrar are responsible for management, operations and initial regulatory decision making. The By-laws specify their mandates.
The CEO
The CEO performs the functions and duties normally associated with the office of chief executive officer6 , including:
Administration
- Manage, coordinate and maintain CPATA’s operations, administration, finances, and organization;
- Engage and supervise employees, agents and contractors of CPATA and direct and supervise them;
- Articulate and manage customer service standards;
- Set the terms of delegation of the authority of the Registrar;
Board Support
- Counsel and assist the Board implementing and evaluating CPATA’s regulatory activities;
- Keep the Board up to date on developments in professional regulation;
- Propose metrics to the Board for compliance reporting, and report on achievement of regulatory goals and outcomes;
- Assist Chair of Board in development of Board agenda and Board’s focus;
- Ensure resources are available for organizing Board meetings, and taking minutes;
Legal
- Execute documents on behalf of CPATA;
- Ensure the Board complies with the Act, regulations, by-laws and policies affecting it;
- Ensure compliance with laws such as privacy, access to information, and bilingualism;
Program Administration
- Articulate processes for management of business procedures (adoption, retention, amendment);
- Determine insurance requirements for licensees, which may differentiate different classes of practice;
- Determine practice standards for licensees;
- Determine appropriate levels of transparency related to individual regulatory transactions of CPATA and business processes;
Performance Management Reporting
- Measure and report to the Board on compliance with policies and laws, and achievement of goals and outcomes;
- Propose and carry out internal and third party reviews of operations and accomplishments;
Risk Management
- Ensure risks are managed, for both the organization and for regulated licensees, including all forms of insurance required for the organization;
Communications
- Ensure communications with all stakeholders;
Leadership
- Leads CPATA;
Miscellaneous
- Carry out the duties and responsibilities conferred by the Act, the Regulations, the By-laws and policies and procedures approved by the Board;
- Give effect to policy directions established by the Board;
- Other functions and duties as assigned by the Board;
- Regular reporting to the Board on other matters as required;
- Report to the Minister as required by the Act.
The Registrar
The Registrar performs the duties and responsibilities conferred by the Act, the Regulations, the By- laws and Policies approved by the Board or the CEO. To support the Regulatory Objectives, Standards and Principles, the Registrar establishes regulatory policies, procedures, and forms for all relevant programs, which are called ‘Registrar’s Policies’.
The Act authorizes the Registrar to delegate some decision-making. The Registrar has done so for all registration decisions by delegating first instance authority to the Deputy Registrar. Monthly reports of delegated decisions are provided to the Registrar.
4.4 Committees
There are three kinds of committees:
Board Committees
The Board can establish committees or task forces, must set their terms of reference, appoint members, and set their tenure. These can be standing committees or set up for a specific purpose (and usually a specific timeframe). Board committees are the Audit and Risk Committee, the Nominating and Board Development Committee, and the Governance Committee.
CEO Committees
The CEO can also strike committees or work groups to assist with the CEO/staff’s work. These might be subject matter specialists or may be advisors from other regulators or from other countries. Consultation committees struck by the CEO represent opportunity to engage stakeholders on a variety of issues central of the success of CPATA. To date the CEO has appointed groups to assist in development of a competency profile for entry level agents, and another to advise on the qualification examinations.
Regulatory Committees
These include the Investigations Committee and the Discipline Committee established by s.21 of the Act and the Registration Committee created I the By-laws. They are appointed by the Board, based on articulated competencies. A majority of members of these committees must not be licensees.
The Chair of the Investigations Committee may direct a panel of one or more Committee members to consider a complaint brought forward by the Registrar. The panel will investigate the matter according to the Act. If the committee considers there is merit to the complaint of professional misconduct or incompetence, they must refer the matter to the Discipline Committee.
The Discipline Committee will sit in panels of 1-3 members, as decided by the Chair. They are obliged under the Act to conduct an oral hearing. The Act lays out the procedures, in sections 51– 58, and the appeal provisions to the Federal Court. Further details of the process are set out in the By-laws.
5. Scope of CEO/Registrar regulatory decisions
Transactional work of CPATA is carried out by the staff. In the course of that work they (or staff or contractors reporting to them) make different kinds of regulatory decisions. Some of these are decisions about how the work will be carried out – processes, forms, deadlines, etc. – while some are decisions about individuals. The By-laws specify some requirements for the Registrar’s decision making.
5.1 Registration decisions
- The Registrar makes regulatory decisions, always driven by public interest factors about individual licensees or applicants, that can affect the individual’s status. This includes admission, ongoing compliance, annual renewals and enquiries/complaints/expressions of concern;
- about the processing of inquiries and complaints; and
- setting procedures for regulatory transactions, including required processes, supporting forms and documents, and required timelines or deadlines.
Processes used for these decisions are circumscribed by Board level policy decisions, including Regulatory Objectives, Standards and Principles, and the By-laws. Decisions must comply with statutory and common law. Of particular importance to all decision making by the Registrar are the decision-making principles, as they create a menu of matters to be considered by the Registrar in determining matters under the By-laws. Evidence based decision-making and providing written reasons are two key principles applied to all regulatory decisions.
In the normal course of operating a regulator, licensees and applicants may find themselves negatively impacted because of a provision of the statute, by-law, or a policy. Examples range from failure to pay a levy or some other amount of money owing to CPATA or failing to make some form of application in time or in a form required or failing an examination. These breaches may be technical (such as failing to do something on time) or substantive (failure to pass an examination or other competency assessment). In evaluating how to respond to this type of breach, the Registrar is guided by CPATA’s commitment to using risk as a basis for decision making and the College’s commitment to using ‘right-touch regulation’.
5.2 CEO decisions
Applicants, licensees, and their agents may contact CPATA.
The CEO/Registrar and staff deal with these situations in a manner that is timely, helpful, respectful, responsive and that demonstrates right touch approaches. When possible, without diluting the impact of the relevant regulatory process, staff will be empowered to resolve matters.
For some of these situations a specific review process will be in place (for example, when an applicant challenges the marking of an examination or assessment). If no specific process exists, the CEO will also provide an internal process to deal with challenged outcomes as matters arise. This internal process will also be available to reconsider a situation in which the CEO or staff have decided on a matter and communicated it. The CEO will publish the process and how to access it, and staff dealing with these situations will advise applicants and licensees of this process. These resolutions will comply with the Regulatory Objectives, Standards and Principles. This internal appeal is in addition to the appeal to, say, the Registration Committee.
The CEO will articulate customer service standards that deal with the timeliness of responses, timeliness of resolutions and the nature of staff responses. We will also have documentation standards, so an appropriate record is kept. As staff must be respectful in their communications and actions regarding licensees and others, so too must people dealing with CPATA be respectful; staff and the CEO/Registrar may refuse to deal with someone who is abusive.
Where required, we use resources to assist the CEO in making regulatory decisions, including subject experts, legal advisors, a 3rd party mediator/resolver, and experts from other regulators.
5.3 Policy/process decision areas
Policy | Primary responsibility |
Accounting | CEO |
Fee payment and license renewal | CEO |
Maintenance of the registers of Patent Agents and Trademark Agents | Registrar, subject to statute |
Risk management | CEO subject to oversight by Board and the Audit and Risk Committee |
Privacy and related | CEO, subject to relevant statutes |
Official Languages | CEO |
Human resource | CEO |
Technology, including data use and security | CEO |
Director and committee member remuneration | Board |
Travel | CEO and Board for director travel |
Admissions – both what, and how admissions standards are assessed | Board makes high level policy decisions.
Registrar decides policies for administration of processes, forms and required documentation, assessment policies, and individual levels of achievement |
Business processes for adopting and modifying CEO or Registrar policies | CEO |
Complaints’ processing | Registrar, subject to Committee policies, the Act, and by-laws |
Compliance with licensee reporting requirements such as admission info, keeping addresses up to date, CPD etc. | Registrar |
Operating instructions for regulatory programs [this provides clarity about future programs, such as practice audits and the like] | CEO |
Adjudication processes | Regulatory Committees subject to the Act, Board policies, by-laws, and Committee policies |
Process for reviewing Registrar decisions | CEO for internal appeals; Registration Committee for decisions in that area. |
Practice standards | CEO |
Unauthorized practice | TBD |
Ethical standards | Board |
Principles for enforcing ethical standards (and admission standards) | Board |
Governance – including how Board works, Board and statutory committees and mandates and membership, Board compensation. . . | Board, by-laws |
5.4 Expectations of CEO in making policy decisions
The CEO must make policy and process decisions defensible from legal and risk management perspectives, and practicable. They must advance the public interest and consider and comply with the Regulatory Objectives, Standards and Principles. They may not violate Board Policy No. 5 – Executive Expectations for the Chief Executive Officer and must comply with Board Policy No. 9 – The Public Interest.
There is no formula for determining how to construct these policies and processes, but there are options and ‘ingredients’ that we will consider. They include:
- Proportionality – what is the process or policy intended to accomplish, and what is the least intrusive and least expensive way to achieve that goal?
- Are there options from other work of CPATA, or from other regulators, that should be considered?
- What are the legal constraints on the decision? Is the range of options limited by law? Are there some possible outcomes that are more or less risky from a legal perspective? What steps have been taken to identify and resolve the legal issues?
- For policy development impacting the profession or the public, we are committed to appropriate consultation, as an aspect of openness and transparency. We will ask ourselves:
- What kind of consultation has taken place about the policy recommendation?
- Has the consultation been with the profession, with other regulators or with experts?
- Has the consultation been transparent?
- Is the consultation commensurate to the impact on the profession, CPATA, and the public, in terms of cost, complexity and reputation?
- What are the outcomes/deliverables of the consultation?
- In what way are the consultation outcomes reflected in the policy ultimately proposed?
- What kind of a change management process is proposed?
We recognize the prevalence of resistance to change; however, we are committed to working with stakeholders as we develop, implement, and modify policies and programs to ensure effectiveness as an independent public interest regulator. We expect the CEO to be competent in making decisions that reflect positively on CPATA, consider the Regulatory Objectives, Standards and Principles, and as much as possible, are acceptable to licensees, applicants, and other stakeholders.
The CEO may incorporate a variety of resources in taking these policy and process decisions, including:
- Subject experts from the profession
- Subject experts from other professions
- Legal advisors
- Technical advisors from other domains, including (for example) educators, behavioural psychologists, testing and assessment experts, business consultants, strategic planning consultants, change management advisors, privacy advisors, risk management advisors
- Leaders and staff from other regulators
- Consumer advocates
- CEO initiated advisory committees
- We do not expect the CEO to know all the answers; but they must be proficient at finding those who can assist in finding good answers.
5.5 Equity, Diversity, Inclusion and Reconciliation
CPATA’s commitment to advancing equity in the profession is stated in Regulatory Objective 7 which states:
promote equity, diversity and inclusion in the patent and trademark profession and in the delivery of patent and trademark services.
To meet this commitment CPATA has
- made appointments to committees that reflect diversity, and it has included diversity factors in committee skills matrices so future appointments will reflect this commitment;
- engaged with IPIC to learn from its recent surveys of the profession and to identify how the learnings can be best incorporated into CPATA’s regulatory work;
- used gender inclusive language in all publications and is breaking ground in doing so in French where gendered language is common;
- identified diversity and reconciliation competencies to be included in the competencies for licensees.
The Canadian Network for Agencies of Regulation (CNAR) has articulated an approach for professional regulators in this area7 that CPATA endorses as a starting point for its work:
First: the recognition of the need for inclusion and representation on both sides of protocols and processes; this means leadership and participants should represent diverse identities and inform diverse cultural contexts. Second: organizations must implement distinct discourse and education in order to create empathetic and intentional action that confronts personal and systemic bias. Third: organizations need to consider claiming responsibility beyond the scope of a regulator’s mandates, expanding accountability for upholding the dignity of all stakeholders within regulated professions – beyond accountability solely for the public interest. With each of these notions working together, proper representation can lead to a relational approach to accreditation and licensing processes; as such, a mutually beneficial relationship between serving a regulator’s mandate, as well the dignity and needs of diverse stakeholders throughout, is possible. (Emphasis added)
“Equity Lens” – means the Equity Lens as defined in the Society’s Equity Lens Toolkit and its application as outlined in the Toolkit. An equity lens is a series of considerations to guide decision-making to avoid assumptions based on biases and to break down barriers that prohibit equal participation by all persons, particularly those from Equity-Seeking Communities. The components of the Equity Lens are : a) Identify barriers where they occur; b) Eliminate barriers by making adaptations that reflect the lived experience of those affected; and c) Create new ways of working by considering inclusion at the earliest stages rather than at the end. “Equity-Seeking Communities” – means Equity-seeking groups including women, Indigenous peoples, racialized peoples, persons with disabilities and persons seeking equality based on their sexual orientation and gender identity. “Policy” means any policy, regulation, practice standard, procedure, process, or position statement to
5.6 Adjudicator Decision Making
Adjudicators make decisions about admissions (on review of the Registrar), complaints and discipline matters, and other matters yet to be defined.
These decisions will be made in a manner compliant with the Regulatory Objectives, Standards and Principles, an Adjudicator code of conduct, the Act, Regulations, By-laws, and the relevant procedural rules. Adjudicators will have to complete appropriate training or provide credentials demonstrating they are competent to act in this role before they are appointed to an adjudicative panel.
CPATA will provide legal advice and counsel to Registration and Discipline adjudicative decision-makers, in addition to any advice College staff provide.
Appendix 1: Board Agenda Annual Plan
This plan is set out by quarter. There may be more than one meeting in a quarter.
The Board establishes Governance Policies and other polices directing CPATA’s activities.
At each meeting, the CEO reports on the status of policy implementation, deviation from policies, service levels and statutory obligations.
In addition to what is set out here there may be agenda items dealing with current issues, such as:
- developing new programs;
- policy issues with existing programs;
- relevant changes in the Canadian operating environment, or
- relevant developments in regulatory programs in Canada or elsewhere.
The CEO reports regularly on the operation and goal achievement of one or more selected programs, so the Board is briefed on each program no less frequently than once in every 24-month period. In the initial years of operation, a more frequent schedule may be established.
The CEO also reports on Board Governance Policies and proposes amendments as appropriate. This will be carried out on a schedule that ensures the Board is briefed on each policy no less than once in every 24 months. The Board can require more frequent reporting if necessary.
Although the reports will not be part of the Board agendas, the CEO will provide the Board with an operational overview report monthly, with time at each meeting for questions.
Q1
- CEO report of achievements in prior fiscal year, based on business plan and budget
- CEO report on achievements of policy goals for prior year
- CEO exceptions report, describing any deviations from policies, service levels or statutory obligations
- Q1 financial report from CFO
- CEO report on selected programs
- CEO report on selected Board Governance Policies
- CEO report on stakeholder relations, including government and profession
- Governance Committee report with recommendations to refresh appointments to committees after reviewing the work and performance in the prior year, and proposed plans for upcoming year
Q2
- Board approves financial audit report on recommendation of the Audit and Risk Committee
- Board appoints auditors for next fiscal year
- Discuss priorities for coming fiscal year, within the context of a) priorities, b) longer term (strategic) plans, and c) relevant changes in the operating environment and in regulation throughout the world
- CEO exceptions report, describing any deviations from policies, service levels or statutory obligations
- Report on CEO performance evaluation, and resulting compensation recommendation
- Q2 financial and risk report from CFO.
- CEO report on selected programs
- CEO report on selected Board Policies
- CEO provides copy of Annual Report to Minister
The General Meeting of Members will also take place in Q2, and newly elected Directors take office after that meeting.
Q3
- Business plan decision as basis for budget
- CEO exceptions report, describing any deviations from policies, service levels or statutory obligations
- Report on Board and Committee evaluations
- Q3 financial report from CFO
- CEO report on selected programs
- CEO report on selected Board Policies
- CEO report on stakeholder relations, including government and profession
Q4
- Business plan, budget, and fees for final decision
- Set date for AGM
- CEO exceptions report, describing any deviations from policies, service levels or statutory obligations
- Q4 financial and risk report from CFO
- CEO report on selected programs
- CEO report on selected Board Policies
- CEO report on staff succession policies
- Nominating and Board Development Committee report (prepared in consultation with Governance Committee), including upcoming elections and appointments to the Board, and appointments to Committees
Programs for reporting:
- Admissions/Registrations
- Complaints and Discipline
- Insurance
- Continuing fitness
- Quality Assurance and Continuing Professional Competence
- Governance, including elections and appointments to the Board, and appointments to Committees
- Practice Standards development and advice
1 Regulatory policies (including registration, investigations, discipline, quality assurance, professional development),
operational and management policies, Board governance policies (including Board processes, values, roles, relationship
with CEO, CEO, Board and committee evaluation, planning [strategic and operational], budgeting, risk management,
external [stakeholder and government] relations, public and profession consultations
2 About 1/3 of the profession are lawyers and are therefor regulated in that sphere, an overlap the College recognizes and
will address to avoid confusion for the public and licensees, or any gaps in public protection.
3 s. 6
4 The By-laws provide the College, through its Governance & Nominating Committee, will advise the Minister on Board
appointments.
5 Board Policy No. 9 is being reviewed and is subject to public consultation as of the date of this Policy.
7 Report published in CPATA Board of Directors meeting materials for August 18, 2022.