For the first time since the Plant Breeders’ Rights Act came into force in Canada in 1990, a Canadian court has awarded damages under the Act.
In light of persistent infringement and poor litigation conduct, the King’s Bench for Saskatchewan in Alliance Seed Corporation v Fournier, 2026 SKKB 5 awarded the rights holder Alliance:
• general damages of $1,175,862.56;
• punitive damages of $50,000;
• costs;
• interest (to be determined); and
• a declaration of infringement by the defendant.
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This decision has been appealed.
Subject to an appeal, plant breeders’ rights holders now have significantly more clarity regarding the protection of their rights and access to potential remedies.
The Infringement
The University of Saskatchewan developed a new wheat variety, CDC Verona, for which Alliance Seed Corporation (“Alliance”) held the rights to market and sell. In early 2015, Alliance became aware that Mr. Fournier may be selling CDC Verona seed per section 2(1) of the Act without Alliance’s authorization, thereby violating Alliance’s rights under paragraph 5(1)(c) of the Act.
Alliance promptly sent Mr. Fournier a letter regarding the infringement, and two more letters to Mr. Fournier over the course of the next two years regarding the infringement, to which Mr. Fournier was not responsive.
In early 2017, approximately one month after the sending of the third letter to Mr. Fournier, Alliance commenced legal action and filed a Statement of Claim listing Mr. Fournier and the University of Saskatchewan as defendants.
Of interest, Alliance listed the rights owner University of Saskatchewan as a defendant to comply with requirements of the Act. However, as the University of Saskatchewan did not participate in the dispute, they are not liable for any of the costs or damages.
The Legal Battle
Mr. Fournier did not respond to the Statement of Claim, and was noted for default of defence in 2017. In 2019, Mr. Fournier was served with a court order to produce documents and attend questioning – Mr. Fournier did neither.
In early 2021, Alliance sought and received an order for civil contempt and an order to appear against Mr. Fournier. The order was served on Mr. Fournier, who ignored it – the RCMP declined to arrest Mr. Fournier. A month later, the court issued an arrest warrant for Mr. Fournier, stayed due to Covid-19.
Mr. Fournier finally chose to engage with legal proceedings, was granted a without notice application and appearance by the court, and paid a $10,000 cost award to Alliance. In turn, the arrest warrant was cancelled.
In mid-2021 Mr. Fournier was questioned, his contempt of court was purged, and Mr. Fournier paid an additional $2,000 in costs to Alliance.
In mid-2022, an order was issued against Mr. Fournier to reply to undertakings. Within a month, Mr. Fournier had provided responses to approximately half of undertakings, with the other half refused.
In late 2024 Alliance sought summary judgement, and in early 2025 Mr. Fournier filed an affidavit, which Alliance then objected to.
The hearing for summary judgment was held in late 2025, over 10 years after Alliance first learned of Mr. Fournier’s alleged infringement.
The Court’s Decision
First Issue – Mr. Fournier’s Affidavit
The court struck 9 paragraphs of Mr. Fournier’s affidavit, but retained one paragraph stating that “farming is uncertain” as being “personal experience” rather than an “opinion” and of which a court of Saskatchewan could nonetheless take judicial notice, and retained another paragraph as an assertion of a corporate shield defence rather than an assertion of fact.
The court also reviewed objections to Alliance’s evidence that were improperly pleaded in Mr. Fournier’s affidavit, and found Alliance’s evidence admissible.
Second Issue – Is Default Judgment Appropriate?
In short, yes.
Alliance’s statement of claim was sufficiently pled to establish Mr. Fournier’s liability from 2013 to 2016, and Mr. Fournier declined to defend against the statement of claim as he failed to file a statement of defence, failed to respond to relevant undertakings, and failed to respond to Alliance’s evidence which supported Alliance’s claims.
Mr. Fournier also comported himself in a manner that the court found evasive and contradictory, and failed to offer corrections, which impugned his credibility.
Although Mr. Fournier’s affidavit did offer defences, these defences were improperly pled and therefore irrelevant, but the court reviewed the defences anyways and did not find merit in them.
Of note, the court held that although Alliance sued Mr. Fournier in his personal capacity rather than his corporate entity (i.e., G.F. Farms Ltd.) which may have committed the infringement, Mr. Fournier in his personal capacity may still be liable for the actions of his corporate entity as he was the sole shareholder and human actor of the corporate entity.
Third Issue – Remedies
As no court of Canada had awarded damages under the Act, the court relied on jurisprudence from the Patent Act and the Trademarks Act to quantify damages due to Mr. Fournier’s infringement.
Although Alliance requested either an accounting of profits or general damages, the court awarded general damages – possibly because an accounting of profits could not be determined without Mr. Fournier’s participation.
The court followed the damages calculations proposed by Alliance based on the publicly available data sourced at least in part from the Saskatchewan Crop Insurance Corporation. Alliance proposed that Mr. Fournier’s unaccounted for grain comprised sold infringing seed, and could be calculated as follows: Infringing Seed = Grain Produced – (Grain Sold + Grain Stored + Grain Seeded). The Infringing Seed result was then multiplied by Alliance’s annual levy per bushel to estimate Alliance’s annual loss.
The court generally accepted Alliance’s estimates, and noted that Mr. Fournier had withheld and/or destroyed information and had refused to perform undertakings relevant to these calculations.
However, the court still reduced the estimated quantum by 10% to account for inherent uncertainties in farming, and thus awarded Alliance $1,175,862.56 in general damages.
The court awarded Alliance punitive damages of $50,000 due to years of continued infringement after notice and Mr. Fournier’s lack of cooperation during the litigation.
The court awarded costs to Alliance, but refused to award solicitor-client costs as the circumstances did not merit them.
The court awarded interest to Alliance, but as Alliance did not propose a calculation of interest at any stage of the proceeding, issues of interest were left to be determined.
Finally, the court awarded Alliance a declaration of infringement, but refused the requested injunction against Mr. Fournier as there was a perceived low risk of continued infringement by Mr. Fournier.
Implications for Rights Holders and Potential Infringers
The remedies awarded in this case reflect both the infringement of a plant breeder’s rights, and poor conduct by an infringer. Nevertheless, subject to appeal this case holds important lessons for both rights holders and potential infringers
Rights holder should note that:
1. A properly pled statement of claim which can fully support a summary judgment is essential, including with respect to defendant liability and desired remedies.
2. Damages may be estimated from available data sources such as insurance and industrial datasets, even if an infringer refuses to fully participate.
3. Providing notice of perceived infringement to potential infringers may ground an awarding of punitive damages for infringement past the date of notice.
4. Choose the right defendants, and ensure that a statement of claim is directed to the proper defendants, such as a relevant corporate entity in addition to individual defendants – it is not a given that a corporate veil will be pierced.
5. Equitable remedies such as accounting of profits may be denied by a court if the rights holder does not conduct themselves with integrity and fairness at all stages of the dispute.
Potential infringers should note that:
1. Ignoring a notice from a potential rights holder can prolong an infringement period and lead to increased compensatory damages and an award of punitive damages.
2. Agriculture is a highly data driven industry – refusal to provide relevant data regarding your operations may lead to damages awarded based on estimates from other available sources, and degrade and/or destroy your credibility with the court.
3. Engaging with a potential rights holder and the courts must be in good faith to avoid potential discretionary punishments, such as punitive damages.
Ultimately, an infringement of a plant breeder’s rights can have serious financial consequences.
Any rights holder who suspects infringement and any potential infringer who has received notice from a potential rights holder about alleged infringement should consult a licensed Canadian lawyer without undue delay.