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The Saskatchewan Court of Appeal recently released its decision in Mosiuk v BASF Canada Inc., 2025 SKCA 90. The Court upheld an interlocutory injunction and preservation order authorizing BASF to enter the defendants' property, take leaf samples from the allegedly infringing canola crop, and conduct destructive testing on the leaves to assess infringement of its canola seed patent. This case highlights the unique testing considerations that arise in agricultural biotechnology cases and considers the interlocutory remedies that may be available to patent holders.
Background
BASF Canada Inc. (BASF) owns a patent relating to a canola seed that it sells under the brand name InVigor Hybrid Canola (InVigor). Sales of InVigor are governed by a licensing agreement, the Liberty & Trait Agreement (LTA), that restrict its sale and use.
BASF accused Larry Mosiuk and Joy Skrapek, a couple who farm near Kamsack, Saskatchewan, of violating its patent rights. In 2013, Mr. Mosiuk signed an LTA with Bayer (the original developer of InVigor) and was granted a limited license to use InVigor to plant one crop. Mr. Mosiuk was barred from harvesting the seeds (bin-run seed) and from growing a second-generation crop (F2 crop).
In 2024, BASF suspected that Mr. Mosiuk had violated the LTA by planting an F2 crop. BASF tried to exercise its audit rights under the LTA to confirm whether the bin-run seed had been planted, but Mr. Mosiuk refused. BASF then commenced an action in the Saskatchewan Court of King's Bench against Mr. Mosiuk and Ms. Krapek for breach of contract and patent infringement. BASF applied for an interlocutory injunction under Rules 6-41 and 6-44 of the King's Bench Rules and a preservation order to enter the defendants' property, obtain leaf samples and test the crop, free from obstruction.1 BASF argued the application was urgent because there was only a short time in which they could obtain leaf samples before the leaves desiccated and could no longer be tested.
The Court of King's Bench granted the interlocutory injunction, holding that BASF would suffer irreparable harm if evidence was not preserved and that the balance of convenience favoured BASF.2 The Court also held there was a serious issue to be tried, notwithstanding Mr. Mosiuk's arguments that the LTA was unenforceable because Mr. Mosiuk did not read the LTA before signing it, the seed dealer presented the LTA as a mere formality, and Mr. Mosiuk received no consideration for it.
The Appeal
Mr. Mosiuk appealed. The Saskatchewan Court of Appeal upheld the interlocutory injunction. Although BASF had already taken the leaf samples and conducted the testing, the Court of Appeal declined to dismiss the appeal as moot and held it should be heard in the interests of justice. While interlocutory injunctions are uncommon in patent cases, the nature of the patent in question, involving a living crop with a specific lifecycle, necessitated special relief so that the leaves could be tested during the narrow window of time.3
The Court of Appeal also upheld the lower court's finding that the LTA was enforceable. Although the appellants claimed that the LTA was unenforceable due to an absence of consideration and misrepresentation by BASF's agent, the Court of Appeal found that the lower court did not err in concluding that BASF established a serious issue to be tried and that consideration, the right to use the InVigor seed, was received.4
Conclusion
Mosiuk v BASF Canada Inc. is an interesting example of patent litigation in a provincial court and provides a roadmap for obtaining interlocutory relief to conduct testing in agricultural biotechnology patent cases. This case also illustrates the interplay between enforcement of contractual rights (under the LTA) and agricultural biotechnology patent rights.
Footnotes
1 BASF sought further relief related to the seed inventory maintained by the defendants. However, during the hearing, counsel for BASF acknowledged they had provided limited evidence with respect to this relief and submitted that gathering leaves from the standing canola would be minimally disruptive.
2 BASF Canada Inc. v Mosiuk (8 August 2024) Regina, KBG-RG-01741-2024 (Sask KB) at paras 21-22.
3 Ibid at para 21.
4 Ibid at paras 18-19.
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