INTELLECTUAL PROPERTY RIGHTS

NATIONAL LEGISLATION - CANADA

CIVIL REMEDIES

Infringement

41. (1) A person who infringes plant breeder's rights is liable to the holder thereof and to all persons claiming under the holder for all damages that are, by reason of the infringement, sustained by the holder or any of those persons and, unless otherwise expressly provided, the holder shall be made a party to any action for the recovery of those damages.

Relief in the event of infringement 

(2) In an action for infringement of plant breeder's rights that is before a court of competent jurisdiction, the court or a judge thereof may make any interim or final order sought by any of the parties and deemed just by the court or judge, including provision for relief by way of injunction and recovery of damages and generally respecting proceedings in the action and,
without limiting the generality of the foregoing, may make an order 

(a) for restraint of such use, production or sale of the subject-matter of those rights as may constitute such an infringement and for punishment in the event of disobedience of the order for that restraint;

(b) for compensation of an aggrieved person;

(c) for and in respect of inspection or account; and

(d) with respect to the custody or disposition of any offending material, products, wares or articles.

Appeals 

(3) An appeal lies from any order under subsection (2) under the same circumstances and to the same court as from other judgments or orders of the court in which the order is made.

Jurisdiction of provincial courts 

42. (1) An action for infringement of plant breeder's rights may be brought in the court of record that, in the province in which the infringement is alleged to have occurred, has jurisdiction pecuniarily to the amount of the damages claimed and that, in relation to other courts of the province, holds its sittings nearest to the place of residence or place of business of the defendant.

Proof of jurisdiction 

(2) The court in which an action is brought in accordance with subsection (1) shall decide the action and determine costs, and assumption of jurisdiction by the court is of itself sufficient proof of jurisdiction.

Section 43 not impaired 

(3) Nothing in this section impairs the jurisdiction of the Federal Court under section 43.

Jurisdiction of Federal Court 

43. (1) The Federal Court has jurisdiction to entertain an action or proceeding, other than the prosecution of an offence, for the enforcement of a provision of this Act or a right or remedy conferred or defined thereby.

Idem 

(2) Subject to section 44, the Federal Court has exclusive original jurisdiction, on the application of the Commissioner or of any interested person, to order that any entry in the register be struck out or amended on the ground that, at the date of that application, the entry as it appears on the register does not indicate with accuracy, to the extent of any requirement thereof by virtue of section 63, existing rights of the person appearing to be the registered holder of the plant breeder's rights to which that entry relates.

Invalidation by Federal Court 

(3) Subject to section 44, plant breeder's rights may, at the instance of the Attorney General of Canada or an interested person, be declared invalid by the Federal Court, but only on the following grounds:

(a) a requirement specified in paragraph 4(2)(a) was not fulfilled;

(b) a condition specified in paragraph 7(1)(a), (b) or (c) was not fulfilled; or

(c) the holder has not complied with paragraph 30(1)(a).

Declaration 

(4) A person who has reasonable cause to believe that any thing done or proposed to be done by that person might be alleged by the holder of plant breeder's rights to constitute an infringement of those rights may, subject to subsection (5), bring an action in the Federal Court against the holder for a declaration that the thing so done or proposed to be done does not or would not constitute an infringement.

Proceedings not to be taken without giving security 

(5) A plaintiff, except the Attorney General of Canada or the attorney general of a province, in an action referred to in subsection (4) shall, before proceeding therein, give security for the costs of the holder in such sum as the Court may direct.

Defendant not required to give security 

(6) A defendant in an action for infringement of plant breeder's rights is not required to give any security for the purpose of obtaining a declaration under subsection (4).

Restriction 

44. No person who has actual notice of a decision given by the Commissioner and a right to its review pursuant to any regulations made under paragraph 75(1)(m) or a right of appeal from that decision or any decision given on its review is entitled to institute any proceeding under subsection 43(2) or (3) calling into question the decision given by the Commissioner or on the
review.

Holder may be required to take proceedings 

45. (1) A person authorized pursuant to paragraph 5(1)(d) or licensed to exercise plant breeder's rights may, subject to any agreement between the holder of the rights and that person,

(a) call on the holder to take proceedings for infringement of the rights; and

(b) where the holder refuses or neglects to take proceedings within the prescribed period after being called on under paragraph (a) to do so, institute in the name of that person, making the holder a defendant, proceedings for infringement as if that person were the holder.

Holder not liable for costs 

(2) A holder who is made a defendant pursuant to paragraph (1)(b) is not liable for any costs unless the holder takes part in the proceedings.

Defence 

46. A defendant in an action for infringement of plant breeder's rights may plead as a matter of defence any of the following grounds but no others, in relation to the invalidity of the plant breeder's rights:

(a) that a requirement specified in paragraph 4(2)(a) was not fulfilled;

(b) that a condition specified in paragraph 7(1)(a), (b) or (c) was not fulfilled; or

(c) that the holder has not complied with paragraph 30(1)(a).

Admissibility of certificates given outside Canada 

47. In an action or proceeding respecting plant breeder's rights that is authorized to be had or taken before a court in Canada pursuant to this Act, a document purporting to be a certificate of the grant of protection of a plant variety by the appropriate authority in a country of the Union or an agreement country or to be a certified copy of an official document relating to any such protection, if the certificate respecting the grant or copy purports to be signed by the proper officer of the government of the country, is admissible in evidence without proof of the signature or official character of the person appearing to have signed the document.

Commissioner's costs 

48. The costs of the Commissioner in proceedings before any court under this Act are in the discretion of the court but the Commissioner shall not be ordered to pay the costs of any other of the parties.

Recording judicial invalidation 

49. (1) A certificate of a decision of the Federal Court or the Supreme Court of Canada holding plant breeder's rights to be invalid shall, at the instance of the person filing it to make it of record in the Plant Breeders' Rights Office, be noted in relation to those rights in the register.

Appeal from decision re validity 

(2) A decision holding or refusing to hold plant breeder's rights invalid is subject to appeal to any court having appellate jurisdiction in other cases decided by the court by which that decision was made.

Appeal to Federal Court 

50. (1) An appeal lies to the Federal Court from a decision on review under any regulations made pursuant to paragraph 75(1)(m) or from a decision of the Commissioner, other than a decision subject to review under any such regulations, where the decision on review is given in respect of, or the Commissioner's decision is, a decision

(a) disposing of an application for the grant of plant breeder's rights, an objection filed under section 22 or a petition presented under paragraph 26(2)(b);

(b) determining whether or not

(i) annulment of the grant of plant breeder's rights is required by section 13,

(ii) the grant of a protective direction is to be refused, or

(iii) any condition described in paragraph 20(1)(a) or (b) is fulfilled;

(c) settling terms referred to in subsection 32(2) or determining remuneration or any other matter in disposing of an application for a compulsory licence;

(d) determining whether or not to extend, limit, vary or revoke such a licence or determining the extent or manner of any such extension, limitation or variation;

(e) determining whether or not to carry out any intention referred to in section 37 or subsection 66(3); or

(f) exercising any authority conferred on the Commissioner by section 40.

Limitation 

(2) An appeal under subsection (1) shall be brought within two months after the date on which the decision is made or within such further time as the Federal Court may allow, either before or after the expiration of the two months.

Transmission of documents to Federal Court 

51. (1) Subject to subsection 67(4), where any appeal or other proceedings have been instituted in the Federal Court under any provision of this Act, the Commissioner shall, at the request of any party to the proceedings and on payment of the prescribed fee, transmit to the Court all records and documents on file in the Plant Breeders' Rights Office that relate to the
matters in question in the proceedings.

Idem 

(2) Transmission to the Federal Court by the Commissioner of certificates of entries, certified copies or certified extracts made under the authority of the Commissioner and admissible pursuant to subsection 60(2) or 64(2) or section 65, to the extent that the contents of those records or documents are composed of the entries or shown in the copies or extracts, satisfies the requirements of subsection (1).

Judgments to be filed 

52. A certified copy of every judgment or order made by the Federal Court or the Supreme Court of Canada in relation to any plant breeder's rights that are recorded or to be recorded on the register or for which an application is pending shall be filed with the Commissioner by an officer of the registry of the Federal Court.

OFFENCES

Secrecy 

53. (1) Every person commits an offence who wilfully discloses any information with regard to any variety in respect of which an application for plant breeder's rights is made or with regard to the business affairs of the applicant that was acquired by that person in performing any functions under this Act except where the information is disclosed 

(a) to the Minister, the advisory committee or the Commissioner or to any other person for the purposes of the performance by that other person of any functions pursuant to this Act or of any duties in an official capacity for enforcement of this Act; or

(b) in compliance with any requirements imposed by or under this Act or by virtue of any power lawfully exercised in the course or for the purposes of any judicial proceedings.

Offences respecting denominations and sales 

(2) Every person commits an offence who

(a) wilfully contravenes section 15;

(b) for the purposes of selling any propagating material for propagation or multiplication, wilfully designates the material by reference to

(i) a denomination different from any denomination registered in respect of the plant variety of which the material is propagating material,

(ii) a denomination registered in respect of a plant variety of which the material is not propagating material, or

(iii) a denomination corresponding so closely to a registered denomination as to mislead; or

(c) knowingly, for the purpose of selling any propagating material for propagation or multiplication, represents falsely that the material is propagating material of, or is derived from, a plant variety in respect of which plant breeder's rights are held or have been applied for.

Falsification in relation to administration 

(3) Every person commits an offence who, in relation to the administration of this Act, knowingly

(a) makes any false representation;

(b) makes or causes to be made any false entry in the register or any record;

(c) makes or causes to be made any false document or any alteration, false in a material respect, in the form of a copy of any document; or

(d) produces or tenders any document containing false information.

Punishment of individuals 

(4) An individual who commits an offence under subsection (1), (2) or (3)

(a) is liable on summary conviction to a fine of not more than five thousand dollars; or

(b) is liable on conviction on indictment to a fine of not more than fifteen thousand dollars or to imprisonment for a term not exceeding three years, in the case of an offence under subsection (1) or (2), or five years, in the case of an offence under subsection (3), or to both.

Punishment of corporations 

(5) A corporation that commits an offence under subsection (1), (2) or (3)

(a) is liable on summary conviction to a fine of not more than twenty-five thousand dollars; or

(b) is liable on conviction on indictment to a fine the amount of which is in the discretion of the court.

Definition of "representation" 

(6) In this section, "representation" includes any manner of express or implied representation, by whatever means it is made.

Limitation period 

(7) A prosecution for a summary conviction offence under this Act may be instituted at any time within two years after the time the subject-matter of the prosecution becomes known to the Minister.

Minister's certificate 

(8) A document purporting to have been issued by the Minister, certifying the day on which the subject-matter of any prosecution became known to the Minister, is admissible in evidence without proof of the signature or official character of the person appearing to have signed the document and is evidence of the matters asserted in it.

1990, c. 20, s. 53; 1997, c. 6, s. 76.

Certificate of examiner as proof 

54. A certificate purporting to be signed by an officer of the Plant Breeders' Rights Office who is appointed or designated a principal examiner, stating that a substance or a sample submitted to that examiner by any other officer of that Office has been examined by that examiner and stating the result of the examination is admissible in evidence in any prosecution for an offence
under this Act without proof of the signature or official character of the person appearing to have signed the certificate and, in the absence of evidence to the contrary, is proof of the statements contained in the certificate.

PLANT BREEDERS' RIGHTS OFFICE

55. [Repealed, 1997, c. 6, s. 77]

Plant Breeders' Rights Office 

56. (1) The Plant Breeders' Rights Office is part of the Canadian Food Inspection Agency established by the Canadian Food Inspection Agency Act.

Commissioner 

(2) The President of the Canadian Food Inspection Agency shall designate a Commissioner of Plant Breeders' Rights.

Employees 

(3) The President of the Canadian Food Inspection Agency has the authority to appoint the employees of the Plant Breeders' Rights Office.

Functions of Commissioner 

(4) Subject to section 58, the Commissioner shall receive all applications, fees, papers, documents and materials submitted for plant breeders' rights, shall do all things necessary for the granting of plant breeders' rights and for the exercise of all other powers conferred, and the discharge of all other duties imposed, on the Commissioner by or pursuant to this Act or the
regulations and shall have the charge and custody of the register, books, records, papers and other things belonging to the Plant Breeders' Rights Office.

Absence, etc., of Commissioner 

(5) Where the Commissioner is absent or unable to act or the office of Commissioner is vacant, such other officer as may be designated by the President of the Canadian Food Inspection Agency shall, in the capacity of Acting Commissioner, exercise the powers and perform the duties of the Commissioner.

1990, c. 20, s. 56; 1997, c. 6, s. 78.

Officers and employees not to acquire plant breeder's rights 

57. A person who has been appointed as an officer or employee of the Plant Breeders' Rights Office may not, during the period for which the person holds the appointment and for one year thereafter, apply for the grant of any plant breeder's rights or acquire directly or indirectly, except under a will or on an intestacy, any right or interest in any such grant.

Delegation 

58. (1) The Commissioner may in writing authorize, either generally or particularly, such officers or employees of the Plant Breeders' Rights Office as the Commissioner deems fit to exercise and perform, subject to any general or special directions given or conditions attached by the Commissioner, all or any of the powers conferred and duties imposed on the Commissioner
by or pursuant to this or any other Act.

Presumption of authority 

(2) Every person purporting to act pursuant to any authorization under this section shall, in the absence of evidence to the contrary, be presumed to be acting in accordance with the terms of the authorization.

Engagement of services 

59. (1) The Commissioner

(a) for the purposes of carrying out and evaluating the results of tests and trials referred to in section 23, may engage the services of persons other than employees of the Canadian Food Inspection Agency and pay to those persons fees in accordance with a scale determined by the Minister, with the approval of the Treasury Board, in respect of their services; and

(b) may constitute panels of persons, composed of employees of the Agency or persons appointed or engaged pursuant to paragraph (a), which have the function of conducting examinations for purposes described in that paragraph and of advising the Commissioner as to

(i) the examinations necessary or expedient for those purposes, and

(ii) the results of those examinations.

Discretion unaffected 

(2) Nothing in subsection (1) prejudices any discretion exercisable by the Commissioner.

1990, c. 20, s. 59; 1997, c. 6, s. 79.

Seal of office 

60. (1) The Commissioner shall cause a seal to be made for the purposes of this Act and each certificate issued pursuant to paragraph 27(3)(b) to be sealed with that seal and may cause any other instrument or copy of any document issuing from the Plant Breeders' Rights Office to be so sealed.

Notice of seal and other documents 

(2) Every court, judge and person shall take notice of the seal of the Plant Breeders' Rights Office and shall admit impressions of the seal in evidence without proof thereof and shall take notice of and admit in evidence, without further proof and without production of the originals, all copies or extracts certified under the seal to be copies of or extracts from documents on file in that Office.

Time limit extended 

61. Where any time limit or period of limitation specified by or under this Act expires on a day when the Plant Breeders' Rights Office is closed for business, that time limit or period of limitation shall be deemed to be extended to the next day when that Office is open for business.

Continue with Plant Breeders' Rights Act