Annex B: Disciplinary Process
Regardless of the form of the regulator that would be established, the values and ethics framework would operate using the same common elements. These elements, which are present in the vast majority of professional values and ethics frameworks, include:
- a complaints receipt function;
- a review function;
- an investigative function;
- a disciplinary tribunal; and
- an appeal process.
- The Complaints Receipt Function
The regulator would be responsible for receiving complaints. A complaint may be submitted regarding any agent or firm that is governed by the regulator. Complaints may be submitted by any person, including but not limited to: clients, other agents, patent examiners, provincial law societies, or other members of the public. The purpose of the complaints receipt function would be to provide and publicize a mechanism for receiving complaints against an agent or firm, ensure the complaint meets the required form and initiate any coordination that may be required in the event the agent is regulated by more than one regulatory body (e.g. a provincial law society). If any required information is missing, the regulator would contact the complainant to request the missing information. If the complaint is deemed complete, it would proceed to the review stage.
- The Review Function
Once a complaint is received, it would be reviewed. At this stage the regulator would decide whether to dismiss the complaint or proceed to an investigation. Reasons for dismissal at this stage would be procedural in nature, and could include criteria such as: the complainant does not allege facts that, if true, would result in a violation of the code of conduct; an investigation is already underway regarding the issue being complained about, or; the agent has already been cleared of any wrongdoing regarding the issue.
- The Investigative Function
If the complaint is deemed valid and the regulator deems an investigation is required, the regulator could investigate the complaint itself, or the complaint could be assigned to independent investigators appointed by the regulator.
The investigators would have the authority to review all documents relevant to the case. Any confidential or privileged material discovered in the course of the investigation would be kept in confidence and would not be shared or used outside the context of the disciplinary process. Once the investigation is complete, the investigators would submit a report to the regulator detailing their findings.
The regulator would then meet to review the report and discuss a resolution of the issue. Possible resolutions could include: dismissal the complaint, entering inter a settlement agreement with the agent or firm, or forwarding the complaint to a disciplinary tribunal.
- The Disciplinary Tribunal
If the regulator votes in favour of taking action, a disciplinary tribunal would be convened. The parties before the tribunal would be the regulator and the agent. However, the complainant could request to be heard by the disciplinary tribunal. The agent would have the right to represent themselves or be represented by a lawyer.
The regulator would proceed to present evidence of the suspected breach of the code of conduct and request a disciplinary measure. The tribunal would be tasked with deciding whether a violation of the code has been committed, and deciding on an appropriate disciplinary measure.
The tribunal would have the authority to impose disciplinary measures, such as:
- striking the agent from the register;
- suspending the agents registration for a period not exceeding two years;
- imposing any terms or conditions on the agent's ability to practice (e.g. professional development courses);
- requiring audits of the agent's practice for a limited time;
- imposing a monetary penalty;
- issuing an official reprimand;
- directing that the profession be notified of any action taken by the disciplinary tribunal;
- awarding costs for the proceedings; or
- taking any other action the tribunal considers appropriate in the circumstances.
All proceedings before the disciplinary tribunal would be open to the public, including a record of all decisions, except to the extent necessary to maintain the confidentiality of privileged information.
- The Appeal Process
All decisions of the disciplinary tribunal would provide for an appeal to the Federal Court, either through a statutory right of appeal, or by way of judicial review.
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