Annulment and Revocation of Grants
Marginal note:Annulment of grant
34 The Commissioner may, before the end of the term fixed by subsection 6(1) for a grant of plant breeder’s rights, annul the grant if the Commissioner is satisfied that, at the time of the grant of those rights, the requirements set out in section 4 or the conditions set out in subsection 7(1) were not fulfilled or the holder was otherwise not entitled under this Act to the grant.
- 1990, c. 20, s. 34;
- 2015, c. 2, s. 23.
Marginal note:Revocation of plant breeder’s rights
(a) their holder has failed to comply with paragraph 30(1)(a);
(b) their holder has failed, within the prescribed period, to comply with any request of the Commissioner referred to in section 30;
(c) their holder has failed to comply with a direction under section 16.1 to change the denomination of the plant variety to which the rights relate;
(d) their holder has failed, within the prescribed period, to pay the fee required under subsection 6(2); or
(e) the plant variety which is the subject of those rights no longer meets the conditions described in paragraph 4(2)(c) or (d).
(2) [Repealed, 2015, c. 2, s. 24]
- 1990, c. 20, s. 35;
- 2015, c. 2, s. 24.
36 (1) The Commissioner shall, before annulling a grant of plant breeder’s rights or revoking those rights, give notice in writing that the Commissioner proposes to annul the grant or revoke the rights and the grounds on which the Commissioner proposes to do so to
(a) the prescribed period after the date on which notice is given under subsection (1), or
(b) such further period as the Commissioner may allow,
any interested person may file with the Commissioner an objection against the intended annulment or revocation to which the notice relates.
Marginal note:Representations to be taken into account
(3) Where, under subsection (2), an interested person files an objection against any intended annulment or revocation, the Commissioner shall not carry out the intention or otherwise dispose of the objection unless the Commissioner has taken into account any representations made by interested persons with respect to the matters in question.
Marginal note:Opportunity to object and make representations
(4) Interested persons having objections to file in accordance with subsection (2) or representations to make for the purposes of subsection (3) shall be given a reasonable opportunity to do so pursuant to such notice as the Commissioner deems appropriate, but nothing in this subsection prejudices the requirements of subsection (1).
- 1990, c. 20, s. 36;
- 2015, c. 2, s. 25(F).
Marginal note:Carrying out annulment or revocation
37 The Commissioner’s intention to annul the grant of plant breeder’s rights pursuant to section 34 or to revoke them pursuant to section 35 shall be carried out on the grounds set out in the notice referred to in subsection 36(1) unless the grounds are shown to be false or, in the case of grounds specified in paragraphs 35(1)(b) to (e), any other cause considered by the Commissioner to be sufficient for abandoning that intention is shown.
Surrender of Plant Breeder’s Rights
Marginal note:Surrender of plant breeder’s rights
38 (1) The holder of the plant breeder’s rights respecting a plant variety may surrender those rights by giving the Commissioner notice to that effect and, in the case of rights affected by a compulsory licence granted under section 32, by satisfying the Commissioner that a copy of the notice has been given to the holder of that licence.
Marginal note:Fees due not affected
(2) No surrender of plant breeder’s rights shall affect any liability for any fee due and payable in respect of those rights before the surrender.
- 1990, c. 20, s. 38;
- 2015, c. 2, s. 26(F).
Marginal note:No residency or establishment
39 (1) If a holder of plant breeder’s rights, in the case of an individual, is not resident in Canada or, in the case of a person that is not an individual, does not have an establishment in Canada, the holder shall have an agent in respect of those rights who is resident in Canada.
Marginal note:Where agent lacking
(2) Notwithstanding anything in this Act, where an applicant or a holder of plant breeder’s rights fails to
(a) comply with subsection 9(2) or subsection (1), or
(b) furnish the Commissioner, in writing, with the name and address of a new agent or with a new and correct address, as the case may require, on notice from the Commissioner that
(i) the agent of the applicant or holder has died or, pursuant to section 40, is refused continued recognition by the Commissioner, or
(ii) a letter sent by ordinary mail to the agent of the applicant or holder at the agent’s address of which the Commissioner last had notice has been returned undelivered,
the Commissioner or the Federal Court may, without requirement of service on the applicant or holder, dispose of any proceedings under this Act after the continuance of that failure for the prescribed period or any further period allowed by the Commissioner or the Federal Court, as the case may be.
Marginal note:Other consequences not affected
(3) Nothing in subsection (2) affects any consequences, other than those for which that subsection provides, that the applicant or holder may, at law, suffer as a result of any failure described in paragraph (2)(a) or (b).
- 1990, c. 20, s. 39;
- 2015, c. 2, s. 27.
Marginal note:Refusal of recognition
40 The Commissioner may, for any gross misconduct or prescribed cause or any other reasonable cause considered by the Commissioner to be sufficient, refuse to recognize, or to continue to recognize, any person as authorized by an applicant or a holder of plant breeder’s rights to act in the capacity of agent.
41 (1) A person who infringes plant breeder’s rights is liable to the holder thereof and to all persons claiming under the holder for all damages that are, by reason of the infringement, sustained by the holder or any of those persons and, unless otherwise expressly provided, the holder shall be made a party to any action for the recovery of those damages.
Marginal note:Relief in the event of infringement
(2) In an action for infringement of plant breeder’s rights that is before a court of competent jurisdiction, the court or a judge thereof may make any interim or final order sought by any of the parties and deemed just by the court or judge, including provision for relief by way of injunction and recovery of damages and generally respecting proceedings in the action and, without limiting the generality of the foregoing, may make an order
(a) for restraint of such use, production or sale of the subject-matter of those rights as may constitute such an infringement and for punishment in the event of disobedience of the order for that restraint;
(b) for compensation of an aggrieved person;
(c) for and in respect of inspection or account; and
(d) with respect to the custody or disposition of any offending material, products, wares or articles.
(3) An appeal lies from any order under subsection (2) under the same circumstances and to the same court as from other judgments or orders of the court in which the order is made.
- 1990, c. 20, s. 41;
- 2015, c. 2, s. 28(F).
Marginal note:Jurisdiction of provincial courts
42 (1) An action for infringement of plant breeder’s rights may be brought in the court of record that, in the province in which the infringement is alleged to have occurred, has jurisdiction pecuniarily to the amount of the damages claimed and that, in relation to other courts of the province, holds its sittings nearest to the place of residence or place of business of the defendant.
Marginal note:Proof of jurisdiction
(2) The court in which an action is brought in accordance with subsection (1) shall decide the action and determine costs, and assumption of jurisdiction by the court is of itself sufficient proof of jurisdiction.
Marginal note:Section 43 not impaired
(3) Nothing in this section impairs the jurisdiction of the Federal Court under section 43.
- Date modified: