Recent activity on plant breeders' rights in Canada
Jocelyn Bosse
Recent activity on plant breeders' rights in Canada
Jocelyn Bosse Saturday, June 13, 2026 - Canada, infringement, Jocelyn Bosse, Plant Breeders' Rights, plant varieties, Saskatchewan
It has already turned out to be a busy year for plant breeders' rights in Canada. The year began with what this Kat believes is the first ever Canadian court decision about plant breeders' rights (PBR) infringement (readers will recall that the previous well-known cases like Monsanto v Schmeiser concerned patent infringement). And, more recently, after many years of drafting and consultations, the government has published new PBR regulations with multiple substantive changes to the law.
The Infringement Decision
The PBR infringement decision in Alliance Seed Corporation v Fournier, 2026 SKKB 5, was handed down by the King's Bench for Saskatchewan. At issue was the unauthorised sale of seeds of the variety of durum wheat called 'CDC Verona' that was bred by the University of Saskatchewan’s Crop Development Centre. The Canadian PBR was granted in 2011 and the exclusive right to sell the certified seed of 'CDC Verona' was sub-licensed to Alliance Seed Corporation.
'CDC Verona' wheat (centre left) with reference varieties. Image from the Canadian Food Inspection Agency.
Fournier, the defendant, was in default of defence, and the Court accepted that the infringement claim was sufficiently pled to establish his liability. The Court also doubted Fournier's credibility, given his evasive and contradictory answers during questioning in 2021, such as Fournier's statement that "he had no memory or records of what seed he purchased, planted or harvested in 2013-2016, in particular durum wheat." Therefore, the main legal issue in the case was the relief for PBR infringement.
The Canadian PBR Act identifies various remedies for infringement, including an award of damages as compensation, injunction, etc, but the Court noted that "Relief is not confined to these specified remedies." In this case, the Court determined that it was unnecessary to grant a permanent injunction. As for damages, Fournier had not been forthcoming with sale records, which made it impossible to accurately calculate the actual loss to Alliance. The Court settled on an estimated CAD $1,175,862.56 in general damages. But perhaps the most interesting aspect of the decision is that the Court also concluded that an award for punitive damages was appropriate (partly because Fournier was so uncooperative in the litigation process) in the amount of an additional CAD $50,000.
This Kat is told that the decision is under appeal.
Canada has continued the overhaul of its PBR law, which began with some amendments to its Plant Breeders' Rights Act in 2015. The next step was to revise the Regulations. The final version of the updated Regulations was published here in April.
Photo by Marcus Luu via Pexels.
Extended duration of protection
A key change is that Canada now offers longer protection of 25 years for potatoes, asparagus, and woody plant species. Vines and trees already enjoyed 25 years of protection in accordance with the UPOV Convention, while other species receive 20 years of protection. The addition period of protection for potatoes, asparagus, and woody plants mirrors the approach in the EU.
Farmer's privilege narrowed
Canada has also narrowed its farmer's privilege significantly to align with the approach in many other jurisdictions to limit it to certain seed crops. It now excludes fruit, ornamental and vegetable plants, plants reproduced through vegetative propagation, and hybrids and parental varieties used in hybrid varieties.
Novelty
The final major change is the clarification of novelty. PBRs use a commercial novelty requirement, rather than the absolute novelty required for patents. The new Regulations make it clear that in assessing novelty, a "sale" does not include advertising or any exposure that is not for a consideration.
However, while the duration of protection has been extended for some species, the novelty grace period has not been updated. This means that potatoes, asparagus, and woody plant species commercialised overseas still only benefit from a 4 year grace period from the first sale, rather than the longer 6 year grace period for trees or vines.
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