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In a recently released default judgment from the King’s Bench for Saskatchewan (Alliance Seed Corporation v Fournier, 2026 SKKB 5), Alliance Seed Corporation (Alliance) was granted judgment against Mr. Guy Fournier for infringement of section 5(1) of the Plant Breeders’ Rights Act (the Act)1. This is the first decision in Canada granting damages for infringement under the Act, and is welcome news to plant breeders’ rights holders and their licensed agents. The Court undergoes a novel method to assess and quantify damages under the Act, guided by principles in patent cases. This decision is currently under appeal.
- This is the first case that assessed damages under the Plant Breeders’ Rights Act and it demonstrates that the Act may be an effective route to address infringement of plant breeders’ exclusive rights.
- The King’s Bench of Saskatchewan awarded general damages of C$1,175,862.56 and punitive damages of C$50,000.00 to Alliance for Mr. Fournier’s infringement of the Act.
- The Court held that principles used to assess infringement damages under the Patent Act can appropriately guide assessments under the Act, given the similarity of the provisions and shared foundations of monopoly protection.
- Given that the Act has been in effect for over 35 years, this decision is welcome relief for those who have been applying for and obtaining plant breeders’ rights and trying to enforce their rights.
- This decision is currently under appeal.
Protections under the Plant Breeders’ Rights Act
The Plant Breeders’ Rights Act grants protection for plant breeders who develop new varieties of plants. Under section 5(1) of the Act, plant breeders are granted an exclusive right to sell propagating material of new plant varieties to encourage and reward innovation in plant breeding. However, “farmers’ privilege”, an exemption to plant breeders’ rights, provides farmers with the ability to save and reuse seeds from protected plant varieties in subsequent years2, while farmers may not sell the seeds to other farmers.
Although the Plant Breeders’ Rights Act has been in force since 1990, the courts had never addressed the remedies provisions of the Act until this case. This decision marks the first time a court has determined how to calculate damages for infringement involving certified seed.
Background of the case
Alliance alleged that Mr. Fournier infringed section 5(1) of the Act by advertising and selling CDC Verona durum wheat seed (the Verona Seed), which was developed by the University of Saskatchewan’s Crop Development Centre, and registered under the Act. Alliance, as a sublicensee of the University of Saskatchewan, brought action under section 41 of the Act, which provides civil remedies for infringement of plant breeders’ rights and allows the court to order a broad range of remedies, including damages, injunctions, and orders for inspection or accounting, and for custody or disposition of any offending material3.
This case has a long procedural history starting in 2015, when Alliance first became aware that Mr. Fournier might be advertising and selling the Verona Seed4. Between 2019 and 2025, Mr. Fournier was consistently uncooperative in the litigation process and this behaviour became a relevant factor when the Court assessed liability and damages.
The Court’s analysis and quantification of damages
One key issue that was considered by the Court is the relief and damages to be granted to Alliance.
The Court was fully satisfied with the facts in Alliance’s statement of claim that Mr. Fournier contravened the Act by advertising and selling CDC Verona certified seed from 2013 to 2016. The Court granted declaratory relief; however, the Court did not grant a permanent injunction against Mr. Fournier, noting that the threshold to grant a permanent injunction is a high bar. The Court found no evidence that Mr. Fournier would continue to sell the Verona Seed, and determined that the other relief granted should be sufficient for deterrence.
Because there had never been a case that had applied section 41 of the Act, the Court needed to find a novel legal approach to addressing damages under the Act. Justice Robertson noted that in this case, while it was difficult to quantify damages, this difficulty was not a reason to deny damages and that the Court “should be open to different approaches to quantifying damages”5.
The plaintiff and the Court drew on principles from the Patent Act—which contains similar relief provisions for infringement—and considered relevant patent cases6. In addition to the patent cases, the Court also considered a decision from the Federal Court7 that granted a summary judgment for violations of both the Trademarks Act and the Copyright Act. In that case, “a standard amount is multiplied against each instance of infringement or inventory turnover to calculate the lump-sum damage award”8. Alliance proposed a similar calculation in seeking damages (referred to as the Missing Grain Formula by Alliance), which included multiplying the royalty amount per bushel that Alliance should have received against the amount of grain sold by Mr. Fournier to calculate the actual loss9.
The Court acknowledged that there were gaps and limitations in Alliance’s Missing Grains Formula. However, Alliance used the best available data for its calculations, and Alliance had to rely on estimations because Mr. Fournier failed to provide records and relevant information during the litigation process. The Court found that Mr. Fournier’s failure to produce records, including any destruction if it occurred, was intended to conceal his unlawful infringement of plant breeders’ rights. As such, the Court accepted the Missing Grains Formula as sound and reasonable, but exercised its discretion to lower the amount of damages calculated by Alliance by 10%10.
Aggravated or punitive damages awarded
Alliance further requested aggravated or punitive damages of C$100,000 to deter against infringement of plant breeders’ rights and to denounce Mr. Fournier’s acts. The Court noted that plant breeders are especially vulnerable to infringement, and these infringement cases are often difficult to detect and prove. However, because Mr. Fournier’s uncooperative behaviour had already been addressed through general damages, the Court avoided double punishment and awarded C$50,000 in punitive damages.
Alliance further requested costs on a solicitor-client basis. While the Court did not award solicitor-client costs, costs were awarded for prescribed legal fees, disbursements, and court fees as set out on Column 3 (costs for a complex and difficult action) of the Tariff of Costs11 pursuant to The King’s Bench Rules.
The decision, which is currently under appeal, underscores that the Act provides plant breeders with a viable legal pathway and effective tool to safeguard their certified seed against infringement.
For a summary of the recent amendments to the Plant Breeders' Rights Regulations, please see our accompanying bulletin, Canada's amended Plant Breeders' Rights Regulations now in force.
Footnotes
1 Plant Breeders' Rights Act, SC 1990, c 20.
2 Plant Breeders' Rights Act, section 5.3(2).
3 The Court noted that it is not restricted to only these remedies because section 41(2) of the Act allows the Court to have further discretion on other appropriate remedies.
4 Alliance Seed Corporation v Fournier, 2026 SKKB 5 at para 12.
5 Ibid., para 68.
6 Referring to sections 54 and 55 of the Patent Act, the Court considered Beloit Canada Ltd. v Valmet-Dominion Inc.,1997 CanLII 6342, Monsanto Canada Inc. v Schmeiser, 2004 SCC 34, Apotex Inc. v Bayer Inc., 2018 FCA 32; and Nova Chemicals Corp. v Dow Chemical Co., 2022 SCC 43.
7 Louis Vuitton Malletier S.A. v Torf, 2024 FC 1152.
8 Alliance Seed Corporation v Fournier, 2026 SKKB 5 at para 67.
9 Ibid., para 70.
10 Ibid., para 78.
11 See Tariff of Costs under The King’s Bench Rules.
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