The following analysis applies when a licensee misses a deadline on behalf of a client. The analysis focuses on the distinction between an error or omission that could be actionable in negligence and the standards of professional competence and quality of service in the Code of Professional Conduct (the “Code”), with consideration given to the Federal Court’s decision in Merck Canada Inc. v. Canada (Health), 2021 FCA 224 (CanLII), < https://canlii.ca/t/jkrmh> (“Merck v. Canada”). Leave to appeal was dismissed by the Supreme Court of Canada on May 12, 2022 – Merck Canada Inc. v. Minister of Health, 2022 CanLII 38792 (SCC). < https://www.canlii.org/en/ca/scc-l/doc/2022/2022canlii38792/2022canlii38792.html >
In Merck v. Canada, the Minister of Health refused to list a patent on the patent register because an agent missed the deadline sent out in the regulations. Merck first went to the Federal Court requesting a judicial review of the Minister of Health’s refusal to list the patent. The Federal Court dismissed Merck’s judicial review application. Merck then appealed that decision to the Federal Court of Appeal. The Federal Court of Appeal dismissed Merck’s appeal.
The Federal Court of Appeal held that
This appeal is a valiant attempt by Merck to correct its patent agent’s mistake, specifically, its patent agent’s failure to advise Merck of the ‘806 Patent’s issuance until June 15, 2020. However valiant and understandable, this appeal must fail. This is not the first time that a patent agent has missed a deadline. Unfortunately, it is unlikely to be the last. This appeal constitutes one of several attempts since the late 1990s to circumvent the time limits set out in the PM (NOC) Regulations, particularly those in section 4 (paragraph 7).
Ultimately the Federal Court of Appeal dismissed Merck’s application for judicial review and held that the Minister of Health’s decision not to list a patent on the patent register because an agent missed the deadline sent out in the regulations was reasonable.
The Fundamental Canon of the Code of Professional Conduct (The “Code”) provides that
an agent must at all times conduct themselves with integrity and competence in accordance with the highest standards of the profession in order to retain the trust, respect and confidence of members of the profession and the public [emphasis added].
The Rules with respect to competence are set out in the first part of the Code. The principle of the competence rule states that
[a]n agent owes the client a duty to be competent to perform any agency services and must perform all such services undertaken on a client’s behalf to the standard of a competent agent.
According to the Code, a licensee “must not undertake or continue any matter unless they believe that they are competent to handle it or believe that they could become competent to do so without undue delay, risk or expense to the client”. The Code also states that a licensee must not undertake or continue any matter if they do not believe they could become competent “without associating with another agent who is competent to handle the matter.”
The Code requires that licensees maintain appropriate “records, systems or procedures” in their business” (see Rule 2(a)(iii)). This ethical obligation is reiterated and expanded upon at Rule 2-4 which states that
[a]n agent must maintain appropriate office procedures and systems, including systems for meeting the requirements for all deadlines arising from client matters and for handling and maintaining client affairs without prejudicing them.
The Code also states that a licensee “fails to meet standards of professional competence if there are deficiencies in…their attention to the interests of clients” (see Rule 2(a)(ii)). Missing a deadline may be an indicator that a licensee has a deficiency in their attention to the interests of their clients.
There are also Quality of Service rules in Part 4 of the Code. The Commentary to Rule 4-6 provides that
[a]n agent must meet all deadlines, unless the agent is able to offer a reasonable explanation for not doing so, and ensure that there will be no specific prejudice to the client as a result.
The Code also recognizes, however, that mistakes happen. The Rules with respect to Quality of Service provide that “[a]n agent must inform the client in a reasonably prompt manner of any material error or omission that has been made with respect to the client’s matter” (Rule 4-8). When informing the client of
an error or omission that is or may be damaging…and that cannot be readily rectified, the agent must
(a) promptly inform the client of the error or omission without admitting legal liability;
(b) recommend that the client obtain independent professional or legal advice concerning the matter; and
(c) advise the client of the possibility that, in the circumstances, the agent may no longer be able to continue to act for the client.
Note that the requirement to inform the client of any error or omission is also required by the principle underpinning the Quality of Service rules in the Code. That principle states that a licensee
be both honest and candid when advising a client and must inform the client of all information known to the agent that may affect the interests of the client in the matter.
We bring the Merck v. Canada case to your attention only to illustrate that mistakes happen, to explore what is required of a licensee in order to meet the standards of professional competence, and to elucidate what to do when mistakes do happen.
The Code requires that licensees maintain appropriate office procedures. Licensees must have an effective system for keeping track of deadlines and important dates for all matters. Licensees are expected to have appropriate procedures for ensuring deadlines are not missed. A failure to meet the standards of professional competence occurs if there are deficiencies in “the records, systems or procedures of [a licensee’s] professional business.”
When a deadline is missed, it should be noted that this does not necessarily mean that the Code has been breached. The Code provides that the ethical duty of competence is not the same as the negligence standard. The Code states clearly that even where an error or omission may be actionable for damages in negligence, this does not necessarily mean that the competence rules are breached (see Commentary to Rule 1). In effect, an error or omission does not necessarily mean that the licensee has failed to meet the standards of professional competence.
The Code sets out at Rule 1-2 what deficiencies in a licensee’s practice would indicate that they have or are failing to meet the standards of professional competence and includes:
• deficiencies in a licensee’s knowledge, skill or judgment;
• deficiencies in a licensee’s attention to the interests of clients;
• deficiencies in the records, systems or procedures of their professional business; or
• deficiencies in any other aspects of their professional business.
These deficiencies may lead to missing a deadline and missing a deadline could be an indicator that one or more of the above deficiencies is present, but it is not determinative.
As has been stated in this ethical analysis, mistakes happen. If a licensee does make an error or omission, they have an obligation to inform their client in a reasonably prompt manner (see Rule 4-8 and the principle underpinning the Quality of Service rules at Part 4 of the Code). When a licensee informs a client of an error or omission, they should do so without admitting legal liability, and advise the client that they may wish to seek legal advice and that the licensee may no longer be able to act for them (see the Commentary to Rule 4-8).
Ultimately each Licensee has to decide what the correct course of action is in order to adhere to their professional obligations. Every circumstance is unique and it is up to the licensee to exercise their own professional judgement. Through the Ethics Inquiry process, CPATA’s professional conduct experts are available to help interpret the Code as part of the process of risk-assessment and ethical analysis.
We look forward to receiving more inquiries and providing more guidance to licensees. It helps us identify areas where further information or analysis might be instructive and it will help to inform our consultation on the Code, which will be rolling out in early 2023.