CANADA'S FIRST PLANT BREEDERS' RIGHTS COURT DECISION ON INFRINGEMENT

Eduardo Fonseca: Bachelor of Science in Agronomic Engineering from the University of São Paulo, Brazil;  Residency in Agriculture Commerce; Patent Agent in Brazil, Canada and in the United States; Partner at Moffat & Co. in Ottawa, Canada.

E-mail: eduardo.fonseca@moffatco.com

Erin Wallich: Bachelor of Science in Biology and MSc in Plant Eco-Physiology from the University of Victoria; Intellectual Property Manager at Summerland Varieties Corp. in Summerland, Canada

E-mail: erin@summerlandvarieties.com 

Robert Thompson: Bachelor of Applied Science in Chemical Engineering from the University of Waterloo; J.D. from the University of Western Ontario’s Faculty of Law; Lawyer; Associate at Moffat & Co. in Ottawa, Canada.

E-mail:  robert.thompson@moffatco.com

This article breaks down Alliance Seed Corporation v Fournier, 2026 SKKB 5, the first Plant Breeders’ Rights court decision on infringement in Canada, and discusses some practical impacts of the ruling for plant breeders, seed companies, and IP professionals.

Section 42 of the Plant Breeders’ Rights Act confirms that Canadian provincial courts in the province where the infringement occurred have jurisdiction, alongside the Federal Court. In January 2026, the Court of King's Bench for Saskatchewan (the superior trial court in the province of Saskatchewan) ordered nearly CAD$1.2 million in general damages for unauthorized seed sales, including CAD$50,000 in punitive damages.

The timing of this court decision is important as it amplifies the impact of the PBR amendments to the Regulations that came into force in April 2026, which extended protection periods for certain crops, narrowed the farmers' privilege exemption, and limited the scope of certain novelty-related considerations. Together, the court decision and the regulatory amendments signal a new era for IP enforcement in Canada.

Background: CDC Verona and the licensing chain

The University of Saskatchewan's Crop Development Centre developed a new variety of durum wheat registered as CDC Verona. The Canadian Food Inspection Agency (CFIA) Plant Breeders' Rights Office issued Certificate No. 4101 for the variety on July 5, 2011.

The University licensed Paterson Grain to sell the certified seed. Paterson Grain subsequently sub-licensed Alliance Seed Corporation. Alliance held an exclusive commercial right to sell CDC Verona seed.

In March 2015, Alliance learned that Guy Fournier, a farmer near Kincaid, Saskatchewan, was advertising and selling CDC Verona seed without authorization. Alliance sent three letters between 2015 and 2017 demanding that he stop the sales and produce records. Mr. Fournier did not comply.

Alliance filed its Statement of Claim in March 2017.

How was infringement established in this case?

Mr. Fournier was noted for default of defence in May 2017 after failing to file a statement of defence. Under Saskatchewan law and established caselaw, failure to defend is treated as an implied admission of the allegations in the statement of claim.

The Court confirmed that the Statement of Claim was sufficiently pled to establish Mr. Fournier's personal liability for infringing Alliance's rights by advertising and selling CDC Verona seed in 2013, 2014, 2015, and 2016.

The Court also drew adverse inferences from Mr. Fournier's conduct throughout the litigation. He failed to comply with a court order to produce documents, was found in contempt, provided evasive and contradictory answers during questioning, and refused 13 of 24 undertakings.

His attempt to invoke a corporate shield defence was rejected. Mr. Fournier argued that his corporation, G.F. Farms Ltd., was responsible for the sales. The court held that the PBRA creates personal liability for the human actor who commits the infringing acts. A person cannot contravene a public statute and then hide behind a corporation they control as sole shareholder.

The Court issued a formal declaration stating that “Guy Fournier contravened the Plant Breeders’ Rights Act by advertising and selling CDC Verona certified seed in 2013, 2014, 2015 and 2016.”

How were damages calculated?  

The "Missing Grain Formula". No previous Canadian case had assessed damages under the PBRA, making this a first-of-its-kind quantification exercise. The Court drew guidance from patent infringement cases, including Monsanto Canada Inc. v Schmeiser, 2004 SCC 34 and Nova Chemicals Corp. v Dow Chemical Co., 2022 SCC 43.

The court found that a plaintiff in a PBR infringement action may seek compensatory relief either through proof of general damages or through accounting of profits, subject to the court's discretion.

Alliance developed what the court called the "Missing Grain Formula" to quantify its damages:

Missing Grain = D Produced - (D Sold + D Stored + D Seeded), with D being Seed / Grain which Mr. Fournier was lawfully allowed to sell as harvested material, store as harvested material, and reseed under Farmers’ privilege.

The calculation used objective data from the Saskatchewan Crop Insurance Corporation for acreage, production, and storage. Where data was unavailable, Alliance used estimates. The court accepted this necessity because Mr. Fournier either did not keep records or destroyed the ones he had.

The Missing Grain, representing unauthorized seed sales, was then multiplied by Alliance's per-bushel levy (the royalty Alliance would have received from lawful sales) to calculate actual loss.

Recognizing the inherent uncertainty in farming over a four-year period (weather, pests, and other hazards), Justice Robertson exercised discretion to reduce the total by 10%. The final general damages award: CAD$1,175,862.56.

Were punitive damages awarded?

Yes. The court awarded CAD$50,000 in punitive damages in addition to the compensatory award. This was the second layer of financial consequence Mr. Fournier faced.

Applying the framework from Whiten v Pilot Insurance Co., 2002 SCC 18, The Court found that Mr. Fournier's conduct warranted denunciation. The infringement continued over four years despite repeated notifications. He was persistently uncooperative throughout the litigation, failing to comply with court orders and being found in contempt.

The Court was careful to avoid double punishment for the earlier contempt finding, which was separately sanctioned with a CAD$10,000 costs order. But the combination of prolonged infringement, deliberate non-cooperation, and the vulnerability of plant breeders to difficult-to-detect infringement justified punitive damages as a deterrent.

Seed IP infringement is inherently difficult to detect. A farmer selling saved seed to neighbours leaves almost no paper trail. The punitive damages component signals that courts will not only compensate the loss but also actively deter the conduct, especially when the infringer withholds evidence and obstructs discovery.

Why was the permanent injunction denied?

Despite Alliance's request, the Court declined to grant a permanent injunction. This may seem counterintuitive after such a significant damages award, but the court's reasoning is instructive.

Applying the test from NunatuKavut Community Council Inc. v Nalcor Energy, 2014 NLCA 46, the court considered whether the wrong was likely to continue, whether adequate alternate remedies exist, and whether equitable considerations warranted injunctive relief.

The Court found no evidence that Mr. Fournier was continuing or intended to continue infringing. The substantial damages and punitive damages awards, combined with the costs order, constituted adequate alternate remedies. The court concluded that the judgment itself would deter both Mr. Fournier and others who might consider similar unauthorized sales.

For rights holders and IP professionals, it is important to note that a permanent injunction is not automatic even with proven infringement. The Court must be satisfied the conduct is likely to recur.

Why this decision matters for plant breeders in Canada?

Before this ruling, Canada had no court decision quantifying damages for infringement of plant breeders' rights under the Plant Breeders' Rights Act. That lack of jurisprudence resulted in real consequences and uncertainty for rights holders. No dispute had ever been fully litigated in court and the outcome was genuinely unpredictable.

The Alliance Seed Decision establishes the jurisprudence outlining the enforcement calculus for the infringement of a holder’s rights. Based on analogous Patent Act jurisprudence, the Court demonstrated a willingness to award substantial compensatory and punitive damages when infringement is clear and the infringer refuses to cooperate with the rights holder.

For plant breeders, seed companies, and university crop development centres, the message is direct: the PBRA provides a viable enforcement route with real financial consequences.

Key takeaways from the case:

For rights holders and licensees: The Plant Breeders' Rights Act is now a proven enforcement tool with real financial consequences. The "Missing Grain Formula" validated in this case provides a practical template for quantifying damages even when the infringer withholds records. The Court demonstrated that it retains discretion regarding remedies, including using patent-law principles, which is important for rights holders who cannot easily prove damages.

For potential infringers: This court case sends a strong message that if they do not cooperate with the courts and provide supporting evidence during discovery, the courts will accept damages calculations that are perhaps in excess of the amount of infringing material actually sold.

For IP professionals: The Court's decision to draw from patent infringement caselaw, including Monsanto v Schmeiser and Nova v Dow, establishes an analytical framework for future PBR damages assessments. The willingness to award punitive damages adds a deterrent mechanism that was previously untested under the PBRA.

This decision was rendered on default judgment. Mr. Fournier never filed a defence, which meant his liability was established by implied admission. An actively defended case could produce a different outcome on damages methodology or quantum. The case is currently under appeal, and appellate guidance may modify the Court's approach. Rights holders should also note that the permanent injunction was denied: substantial damages are not a guarantee of ongoing court-ordered restraint. If the infringer stops, the court may decline injunctive relief.

Note: This decision is currently under appeal and may be subject to further appellate guidance.