PURPOSE
The CPATA Act and By-laws authorize the Registrar to suspend a license in certain specified circumstances, as required to fulfill CPATA’s mandate to protect the public interest.
This Guide has been created to inform licensees about the suspension process, and what they are required to do and are prohibited from doing while their license is suspended.
AUTHORITY
Obligations of licensees
The obligations of licensees, as referenced in s. 35(1) of the Act (below), are set out in by-laws 68 – 71 and 73, and include requirements that licensees:
- have the necessary skills and competencies to practice their profession (68(a));
- be of good character and remain fit to practice (68(b));
- confirm and maintain professional liability insurance required under s. 34(1) of the Act (69(1) – (2));
- on or before March 31st each year:
- Pay the applicable fees (70(a));
- file a complete and accurate annual licensee report;
- provide other information if Class 2, 3 or 4 (70(b) to (d)); and
- advise in writing (73) if:
- served with an application for bankruptcy, makes an assignment of property for the benefit of creditors, or presents a proposal in bankruptcy to creditors;
- has a judgement entered against them by a Court;
- personally subject to an order for costs;
- charged with, pleads guilty to or is found guilty of offences listed in by-law 73(d); or
- they have their professional license restricted or suspended by another professional regulatory body, or are found to have committed professional misconduct or to be incompetent by another professional regulatory body.
Suspension
35(1) The Registrar may, in accordance with the by-laws, suspend a license if the licensee fails to
- Pay the annual fee in accordance with the by-laws;
- Pay, within the time and in the manner provided for under this Act, any other fee or amount that the licensee is required to pay under this Act;
- Provide any information or document in accordance with the by-laws;
- Comply with any requirement that is imposed by the by-laws with respect to continuing professional development;
- Comply with a condition of their license that is imposed under this Act;
- Comply with any requirement with respect to professional liability insurance that is imposed under this Act; or
- Comply with any other requirement that is imposed under the by-laws.
35(2) provides that any suspension under s. 35(1) remains in place unless and until the licensee complies with the requirements set out in the by-laws to address the failure that led to the suspension, or until the license is revoked under s. 35(4) after the period of time specified under the by-laws.
The requirements of licensees who are suspended vary depending on the class of license held at the time of suspension.
Notice of Intent to Suspend
When the Registrar determines that a licence must be suspended, the licensee will receive a Notice of Intent to Suspend at least 7 days before the suspension is to take effect (section 35(2) and by-law 74). This will include the reasons for the suspension, the effective date, and will inform the licensee of the action required or steps to be taken to prevent the suspension. The licensee will be advised that the suspension will take effect on the date specified and will remain in place until the licensee complies with the outstanding requirement(s).
Notice of Suspension
If a licensee fails to take the steps required to avoid suspension, the licensee will then receive a Notice of Suspension including most of the same information provided in the Notice of Intent to Suspend and will also be advised of the process and fees that apply to an application for reinstatement.
Cooperation upon Suspension
In the interests of public protection, the College will take steps to obtain information from suspended licensees regarding the location of client files and property, to confirm the licensee’s current address and contact information for the Public Register, to confirm clients have been notified of the suspension, and to ascertain the status of client matters before CIPO, depending on the class of licence that the agent holds.
Suspended licensees are required to cooperate with the College by providing this and any other information required. A failure to cooperate may require an escalated response from CPATA including referral to the Investigations Committee.
In the case of suspension of a Class 2 or Class 4 license, where the licensee has not been engaged in representation of clients or the presentation and prosecution of applications before CIPO, the risks to the public are lower and CPATA will evaluate in each case the information required, and requirements for reinstatement.
Preventing unauthorized practice
The College, as well as individual licensees, has a duty to prevent unauthorized practice of the patent and trademark professions (s. 67 – 71). This includes providing public notice of the suspension to CIPO and on CPATA’s Register, and addressing concerns or complaints about unauthorized practice by suspended licensees, in the public interest. CPATA has adopted a principled and proportionate response to allegations of unauthorized practice. Based on a risk assessment, actions taken may range from a letter of warning to referral to the Investigations Committee. If a licensee is concerned whether a suspended licensee is engaged in unauthorized practice, they may contact the College through the agent conduct inquiry or ethics inquiry processes.
As of the effective date of the suspension, a Class 1 licensee is not permitted to engage in practice or represent clients before CIPO, including the presentation and prosecution of applications for patents or trademarks, as the case may be. Licensees will be directed to the Patent Act or Trademarks Act for more information on what constitutes the unauthorized practice of a licensee.
If a Class 1 licensee was serving as a supervisor to a Class 3 patent or trademark agent in training licensee, the supervising licensee’s authorization to act in that capacity will be revoked by the Registrar (by-law 65(c)). In such cases, notice will be provided to the agent in training, and the licensee’s employer.
Suspended Class 1 licensees continue to be responsible for protecting their clients’ interests to the extent permissible, and are required to continue to adhere to certain ethical duties under the CPATA Code of Professional Conduct for Patent Agents and Trademark Agents. These duties include to:
- protect and preserve client property, including any account balances, and return any fund being held for unearned fees or disbursements;
- maintain client confidentiality and agent-client privilege;
- notify all clients of the suspension, and to discuss with them their options for retaining a new agent, as well as notifying them of the steps needed to protect their interests;
- facilitate the transfer of client files to new agent, if applicable;
- update all marketing and advertisements including phone answering services, websites and social media platforms to reflect the suspension, including removing references to the title Patent Agent or Trademark Agent; and
- not engage in the unauthorized practice of a licensee.
The requirements of Class 2 licensees are similar to those of Class 1 licensees (refer to Regulations 4 – 11), with the exception of any professional liability insurance exemption that may apply under by-law 69(2).
The requirements of Class 3 licensees are similar to those of Class 1 licensees (refer to Regulations 4 – 11), with the exception of any professional liability insurance exemption that may apply under by-law 69(2). The same notices will be copied to the Class 3 licensee’s Class 1 licensee supervisor.
Any period of suspension will be deducted from the overall period of supervision required in order to satisfy the requirements for applying for a Class 1 license, and any such periods of time will be required to be made up.
Suspended class 3 licensees are not eligible to attempt any qualifying examination. In addition, the suspension and the basis for it may be a relevant consideration for any future application for licensure.
Class 4 licensees are not required to comply with the same requirements as Class 1, 2 and 3 licensees (refer to Part 4 of the by-laws). For example, Class 4 licensees are required to simply file a declaration under by-law 70(d), confirm their contact information and pay the annual fee.
Revocation after Suspension
Under by-law 76, the Registrar may revoke a licence that has been suspended for at least five years by giving notice to the licensee at their last known email address at least 30 days before the day on which the revocation is to take effect.