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.
Marginal note:Jurisdiction of Federal Court
43 (1) The Federal Court has jurisdiction to entertain an action or proceeding, other than the prosecution of an offence, for the enforcement of a provision of this Act or a right or remedy conferred or defined thereby.
(2) Subject to section 44, the Federal Court has exclusive original jurisdiction, on the application of the Commissioner or of any interested person, to order that any entry in the register be struck out or amended on the ground that, at the date of that application, the entry as it appears on the register does not indicate with accuracy, to the extent of any requirement thereof by virtue of section 63, existing rights of the person appearing to be the registered holder of the plant breeder’s rights to which that entry relates.
Marginal note:Invalidation by Federal Court
(3) Subject to section 44, plant breeder’s rights may, at the instance of the Attorney General of Canada or an interested person, be declared invalid by the Federal Court, but only on the following grounds:
(a) a condition specified in paragraph 4(2)(a) or (b) was not fulfilled; or
(b) the holder has not complied with paragraph 30(1)(a).
(c) [Repealed, 2015, c. 2, s. 29]
(4) A person who has reasonable cause to believe that any thing done or proposed to be done by that person might be alleged by the holder of plant breeder’s rights to constitute an infringement of those rights may, subject to subsection (5), bring an action in the Federal Court against the holder for a declaration that the thing so done or proposed to be done does not or would not constitute an infringement.
Marginal note:Proceedings not to be taken without giving security
(5) A plaintiff, except the Attorney General of Canada or the attorney general of a province, in an action referred to in subsection (4) shall, before proceeding therein, give security for the costs of the holder in such sum as the Court may direct.
Marginal note:Defendant not required to give security
(6) A defendant in an action for infringement of plant breeder’s rights is not required to give any security for the purpose of obtaining a declaration under subsection (4).
- 1990, c. 20, s. 43
- 2015, c. 2, s. 29
44 No person who has actual notice of a decision given by the Commissioner and a right to its review pursuant to any regulations made under paragraph 75(1)(m) or a right of appeal from that decision or any decision given on its review is entitled to institute any proceeding under subsection 43(2) or (3) calling into question the decision given by the Commissioner or on the review.
Marginal note:Holder required to take proceedings
45 (1) A person who has been granted, in respect of plant breeder’s rights, an authorization described in paragraph 5(1)(h) or a compulsory licence under subsection 32(1) may, subject to any agreement between that person and the holder of the rights,
(a) call on the holder to take proceedings for infringement of the rights; and
(b) where the holder refuses or neglects to take proceedings within the prescribed period after being called on under paragraph (a) to do so, institute in the name of that person, making the holder a defendant, proceedings for infringement as if that person were the holder.
Marginal note:Holder not liable for costs
(2) A holder who is made a defendant pursuant to paragraph (1)(b) is not liable for any costs unless the holder takes part in the proceedings.
- 1990, c. 20, s. 45
- 2015, c. 2, s. 30
46 A defendant in an action for infringement of plant breeder’s rights may plead as a matter of defence any of the following grounds but no others, in relation to the invalidity of the plant breeder’s rights:
(a) that a condition specified in paragraph 4(2)(a) or (b) was not fulfilled; or
(b) that the holder has not complied with paragraph 30(1)(a).
(c) [Repealed, 2015, c. 2, s. 31]
- 1990, c. 20, s. 46
- 2015, c. 2, s. 31
Marginal note:Admissibility of certificates given outside Canada
47 In an action or proceeding respecting plant breeder’s rights that is authorized to be had or taken before a court in Canada pursuant to this Act, a document purporting to be a certificate of the grant of protection of a plant variety by the appropriate authority in a country of the Union or an agreement country or to be a certified copy of an official document relating to any such protection, if the certificate respecting the grant or copy purports to be signed by the proper officer of the government of the country, is admissible in evidence without proof of the signature or official character of the person appearing to have signed the document.
- 1990, c. 20, s. 47
- 2015, c. 2, s. 32(F)
Marginal note:Commissioner’s costs
48 The costs of the Commissioner in proceedings before any court under this Act are in the discretion of the court but the Commissioner shall not be ordered to pay the costs of any other of the parties.
Marginal note:Recording judicial invalidation
49 (1) A certificate of a decision of the Federal Court, the Federal Court of Appeal or the Supreme Court of Canada holding plant breeder’s rights to be invalid shall, at the instance of the person filing it to make it of record in the Plant Breeders’ Rights Office, be noted in relation to those rights in the register.
Marginal note:Appeal from decision re validity
(2) A decision holding or refusing to hold plant breeder’s rights invalid is subject to appeal to any court having appellate jurisdiction in other cases decided by the court by which that decision was made.
- 1990, c. 20, s. 49
- 2002, c. 8, s. 158
- 2015, c. 2, s. 33(F)
Marginal note:Appeal to Federal Court
50 (1) An appeal lies to the Federal Court from a decision on review under any regulations made pursuant to paragraph 75(1)(m) or from a decision of the Commissioner, other than a decision subject to review under any such regulations, where the decision on review is given in respect of, or the Commissioner’s decision is, a decision
(a) disposing of an application for the grant of plant breeder’s rights, an objection filed under section 22 or a petition presented under paragraph 26(2)(b);
(b) determining whether or not annulment of the grant of plant breeder’s rights is required by section 13;
(c) settling terms referred to in subsection 32(2) or determining remuneration or any other matter in disposing of an application for a compulsory licence;
(d) determining whether or not to extend, limit, vary or revoke such a licence or determining the extent or manner of any such extension, limitation or variation;
(e) determining whether or not to carry out any intention referred to in section 37 or subsection 66(3); or
(f) exercising any authority conferred on the Commissioner by section 40.
(2) An appeal under subsection (1) shall be brought within two months after the date on which the decision is made or within such further time as the Federal Court may allow, either before or after the expiration of the two months.
- 1990, c. 20, s. 50
- 2015, c. 2, s. 34
Marginal note:Transmission of documents to Federal Court
51 (1) If any proceedings have been instituted in the Federal Court under this Act, the Commissioner shall, at the request of any party to the proceedings and on payment of the prescribed fee, transmit to the Court all records and documents on file in the Plant Breeders’ Rights Office that relate to the matters in question in the proceedings.
(2) Transmission to the Federal Court by the Commissioner of certificates of entries, certified copies or certified extracts made under the authority of the Commissioner and admissible pursuant to subsection 60(2) or 64(2) or section 65, to the extent that the contents of those records or documents are composed of the entries or shown in the copies or extracts, satisfies the requirements of subsection (1).
- 1990, c. 20, s. 51
- 2015, c. 2, s. 35
Marginal note:Judgments to be filed
52 A certified copy of every judgment or order made by the Federal Court or the Supreme Court of Canada in relation to any plant breeder’s rights that are recorded or to be recorded on the register or for which an application is pending shall be filed with the Commissioner by an officer of the registry of the Federal Court.
- 1990, c. 20, s. 52
- 2015, c. 2, s. 36(F)
53 (1) Every person commits an offence who knowingly discloses any information with regard to any variety in respect of which an application for plant breeder’s rights is made or with regard to the business affairs of the applicant that was acquired by that person in performing any functions under this Act except if the information is disclosed
(a) to the Minister, the advisory committee or the Commissioner or to any other person for the purposes of the performance by that other person of any functions pursuant to this Act or of any duties in an official capacity for enforcement of this Act; or
(b) in compliance with any requirements imposed by or under this Act or by virtue of any power lawfully exercised in the course or for the purposes of any judicial proceedings.
Marginal note:Offences respecting denominations and sales
(2) Every person commits an offence who
(a) knowingly contravenes section 15;
(b) for the purpose of selling any propagating material, knowingly designates the material by reference to
(i) a denomination different from any denomination registered in respect of the plant variety of which the material is propagating material,
(ii) a denomination registered in respect of a plant variety of which the material is not propagating material, or
(iii) a denomination corresponding so closely to a registered denomination as to mislead; or
(c) knowingly, for the purpose of selling any propagating material, represents falsely that the material is propagating material of, or is derived from, a plant variety in respect of which plant breeder’s rights are held or have been applied for.
Marginal note:Falsification in relation to administration
(3) Every person commits an offence who, in relation to the administration of this Act, knowingly
(a) makes any false representation;
(b) makes or causes to be made any false entry in the register or any record;
(c) makes or causes to be made any false document or any alteration, false in a material respect, in the form of a copy of any document; or
(d) produces or tenders any document containing false information.
Marginal note:Punishment of individuals
(4) An individual who commits an offence under subsection (1), (2) or (3)
(a) is liable on summary conviction to a fine of not more than five thousand dollars; or
(b) is liable on conviction on indictment to a fine of not more than fifteen thousand dollars or to imprisonment for a term not exceeding three years, in the case of an offence under subsection (1) or (2), or five years, in the case of an offence under subsection (3), or to both.
Marginal note:Punishment of corporations
(5) A corporation that commits an offence under subsection (1), (2) or (3)
(a) is liable on summary conviction to a fine of not more than twenty-five thousand dollars; or
(b) is liable on conviction on indictment to a fine the amount of which is in the discretion of the court.
Marginal note:Definition of representation
(6) In this section, representation includes any manner of express or implied representation, by whatever means it is made.
Marginal note:Limitation period
(7) A prosecution for a summary conviction offence under this Act may be instituted at any time within two years after the day on which the subject matter of the prosecution becomes known to the Commissioner.
Marginal note:Commissioner’s certificate
(8) A document purporting to have been issued by the Commissioner, certifying the day on which the subject matter of any prosecution became known to him or her, is admissible in evidence without proof of the signature or official character of the person appearing to have signed the document and is evidence of the matters asserted in it.
- 1990, c. 20, s. 53
- 1997, c. 6, s. 76
- 2015, c. 2, s. 37
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