Canada

Plant Breeders’ Rights Act

(S.C. 1990, c. 20)

(as amended up to February 27, 2015)

Assented to 1990-06-19

An Act respecting plant breeders’ rights

Her Majesty, by and with the advice and consent of the Senate and House of

Commons of Canada, enacts as follows:

Short Title

Short title

1 This Act may be cited as the Plant Breeders’ Rights Act.

Interpretation

Definitions

2 (1) In this Act,

advertise, in relation to a plant variety, means to distribute to members of the public

or to bring to their notice, in any manner whatever, any written, illustrated, visual or

other descriptive material, oral statement, communication, representation or

reference with the intention of promoting the sale of any propagating material of the

plant variety, encouraging the use thereof or drawing attention to the nature,

properties, advantages or uses thereof or to the manner in which or the conditions on

which it may be purchased or otherwise acquired; (publicité)

advisory committee means such advisory committee as may be constituted

pursuant to subsection 73(1); (comité consultatif)

agent, in relation to an applicant or a holder of plant breeder’s rights, means a

person who is duly authorized by the applicant or holder to act, for the purposes of

this Act, on behalf of the applicant or holder and to whom as a person so authorized

recognition is, consistent with any requirements prescribed therefor, accorded by the

Commissioner; (mandataire)

agreement country means any of the following entities that is designated by the

regulations as an agreement country with a view to the fulfilment of an agreement

concerning the rights of plant breeders made between Canada and that entity:

(a) a country,

(b) a colony, protectorate or territory subject to the authority of another country or

under its suzerainty,

(c) a territory over which another country exercises a mandate or trusteeship;

(pays signataire)

applicant means a person by or on behalf of whom an application for the grant of

plant breeder’s rights is made pursuant to section 7; (requérant)

breeder, in respect of a plant variety, means

(a) any person who originates or who discovers and develops the plant variety, or

(b) any person in respect of whom an officer, servant or employee, while acting

within the scope of his or her duties as the officer, servant or employee of that

person, originates or discovers and develops the plant variety; (obtenteur)

category means, in relation to a plant, a species, a grouping of species or any class

within a species; (catégorie)

Commissioner means the Commissioner of Plant Breeders’ Rights designated

pursuant to subsection 56(2) and, except in section 56, includes any person acting

under a written authorization given pursuant to section 58; (directeur)

country of the Union means any country or other entity that is a party to the

International Convention for the Protection of New Varieties of Plants of December 2,

1961, as amended from time to time, or any WTO Member as defined in subsection

2(1) of the World Trade Organization Agreement Implementation Act; (État de

l’Union)

document means anything on which information that is capable of being understood

by a person, or read by a computer or other device, is recorded or marked;

(document)

filing date means, in respect of an application, the date specified in the notice given

under subsection 10(2); (date de dépôt)

holder, in relation to plant breeder’s rights, means the person whom the register

indicates, with respect to a plant variety, is entitled to the plant breeder’s rights

respecting that variety by a grant made under section 27 or is an assignee of, or

other successor in title to, the rights granted under that section in respect of that

variety; (titulaire)

index means the index prepared pursuant to section 62; (répertoire)

infringement, in relation to plant breeder’s rights, means the doing, without authority

under this Act, of anything that the holder of those rights has the right to do under

any of sections 5 to 5.2; (violation)

legal representative, in respect of a breeder of a plant variety, includes the

breeder’s executor or administrator and any assignee of, or other successor in title

to, the rights of the breeder in respect of the plant variety; (représentant légal)

Minister means the Minister of Agriculture and Agri-Food; (ministre)

new variety means a plant variety that is described in subsection 4(3); (obtention

végétale)

person has the same meaning as in section 2 of the Criminal Code; (personne)

plant breeder’s rights, in relation to a plant variety, means the rights that are

granted under section 27; (certificat d’obtention)

plant variety means any plant grouping within a single botanical taxon of the lowest

known rank that, whether or not the conditions for the grant of plant breeder’s rights

are fully met, is capable of being

(a) defined by the expression of the characteristics resulting from a given

genotype or combination of genotypes,

(b) distinguished from any other plant grouping by the expression of at least one

of those characteristics, and

(c) considered as a unit with regard to its suitability for being reproduced

unchanged; (variété végétale)

prescribed means prescribed by regulation; (Version anglaise seulement)

propagating material means any reproductive or vegetative material for

propagation, whether by sexual or other means, of a plant variety, and includes

seeds for sowing and any whole plant or part thereof that may be used for

propagation; (matériel de multiplication)

protective direction [Repealed, 2015, c. 2, s. 2]

register means the register kept pursuant to section 63; (registre)

sell includes agree to sell, or offer, advertise, keep, expose, transmit, send, convey

or deliver for sale, or agree to exchange or to dispose of to any person in any

manner for a consideration. (vente)

(2) [Repealed, 2015, c. 2, s. 2]

1990, c. 20, s. 2; 1994, c. 38, s. 25; 1997, c. 6, s. 75; 2015, c. 2, s. 2.

Her Majesty

Act binds Crown

3 This Act is binding on Her Majesty in right of Canada or a province.

Conditions for Protection

Eligible plant varieties

4 (1) Plant breeder’s rights may not be granted except in respect of a plant variety

that belongs to a prescribed category and meets all of the conditions set out in

subsection (2).

Conditions

(2) Plant breeder’s rights may be granted in respect of a plant variety if it

(a) is a new variety;

(b) is, by reason of one or more identifiable characteristics, clearly distinguishable

from all varieties whose existence is a matter of common knowledge at the filing

date of the application for the grant of plant breeder’s rights respecting that plant

variety;

(c) is stable in its essential characteristics in that after repeated propagation or, if

the applicant has defined a particular cycle of propagation, at the end of each

cycle it remains true to its description; and

(d) is, having regard to the particular features of its sexual reproduction or

vegetative propagation, a sufficiently homogeneous variety.

New variety

(3) A plant variety is a new variety if the propagating or harvested material of that

variety has not been sold by, or with the concurrence of, the breeder of that variety or

the breeder’s legal representative

(a) in Canada, before

(i) the prescribed period preceding the filing date of the application for the

grant of plant breeder’s rights, in the case of a variety belonging to a recently

prescribed category, and

(ii) the period of one year before the filing date of the application for the grant

of plant breeder’s rights, in the case of any other variety; and

(b) outside Canada, before

(i) the period of six years before the filing date of the application for the grant

of plant breeder’s rights, in the case of a tree or vine, and

(ii) the period of four years before the filing date of the application for the grant

of plant breeder’s rights, in any other case.

Definition of sufficiently homogeneous variety

(4) For the purposes of paragraph (2)(d), sufficiently homogeneous variety means

a variety for which, in the event of its sexual reproduction or vegetative propagation

in substantial quantity, any variations in characteristics of the plants so reproduced or

propagated are predictable, capable of being described and commercially

acceptable.

Regulations

(5) The Governor in Council may make regulations prescribing classes of sales that

are not to be considered sales for the purposes of subsection (3).

1990, c. 20, s. 4; 2015, c. 2, s. 3.

Plant Breeder’s Rights

Nature of plant breeder’s rights

5 (1) Subject to the other provisions of this Act and the regulations, the holder of the

plant breeder’s rights respecting a plant variety has the exclusive right

(a) to produce and reproduce propagating material of the variety;

(b) to condition propagating material of the variety for the purposes of

propagating the variety;

(c) to sell propagating material of the variety;

(d) to export or import propagating material of the variety;

(e) to make repeated use of propagating material of the variety to produce

commercially another plant variety if the repetition is necessary for that purpose;

(f) in the case of a variety to which ornamental plants belong, if those plants are

normally marketed for purposes other than propagation, to use any such plants or

parts of those plants as propagating material for the production of ornamental

plants or cut flowers;

(g) to stock propagating material of the variety for the purpose of doing any act

described in any of paragraphs (a) to (f); and

(h) to authorize, conditionally or unconditionally, the doing of any act described in

any of paragraphs (a) to (g).

Royalty

(2) Without prejudice to any rights or privileges of the Crown, an authorization

conferred under paragraph 1(h) may be subject to a condition to pay royalty to the

holder of the plant breeder’s rights whether or not the holder is Her Majesty in right of

Canada or a province.

1990, c. 20, s. 5; 2015, c. 2, s. 5.

Rights respecting harvested materials

5.1 Subject to the other provisions of this Act and the regulations, the holder of the

plant breeder’s rights respecting a plant variety has the exclusive right to do any act

described in any of paragraphs 5(1)(a) to (h) in respect of any harvested material,

including whole plants or parts of plants, that is obtained through the unauthorized

use of propagating material of the plant variety, unless the holder had reasonable

opportunity to exercise his or her rights under section 5 in relation to that propagating

material and failed to do so before claiming rights under this section.

2015, c. 2, s. 5.

Rights respecting certain other varieties

5.2 (1) Subject to the other provisions of this Act and the regulations, the holder of

the plant breeder’s rights respecting a plant variety has the exclusive right to do any

act described in any of paragraphs 5(1)(a) to (h) in respect of

(a) any other plant variety that is essentially derived from the plant variety if the

plant variety is not itself essentially derived from another plant variety;

(b) any other plant variety that is not clearly distinguishable from the plant variety;

and

(c) any other plant variety whose production requires the repeated use of the

plant variety.

Meaning of essentially derived

(2) For the purpose of paragraph (1)(a), a plant variety is essentially derived from

another plant variety (in this subsection referred to as the “initial variety”) if

(a) it is predominantly derived from the initial variety or from a plant variety that is

itself predominantly derived from the initial variety and it retains the essential

characteristics that result from the genotype or combination of genotypes of the

initial variety;

(b) it is clearly distinguishable from the initial variety; and

(c) it conforms to the initial variety in the expression of the essential

characteristics that result from the genotype or combination of genotypes of the

initial variety, except for the differences that result from its derivation from the

initial variety.

2015, c. 2, s. 5.

Non-application of rights

5.3 (1) The rights referred to in sections 5 to 5.2 do not apply to any act done

(a) privately and for non-commercial purposes;

(b) for experimental purposes; or

(c) for the purpose of breeding other plant varieties.

Farmers’ privilege

(2) The rights referred to in paragraphs 5(1)(a) and (b) and — for the purposes of

exercising those rights and the right to store — the right referred to in paragraph 5(1)

(g) do not apply to harvested material of the plant variety that is grown by a farmer

on the farmer’s holdings and used by the farmer on those holdings for the sole

purpose of propagation of the plant variety.

2015, c. 2, s. 5.

Non-application of rights

5.4 (1) The rights referred to in sections 5 to 5.2 do not apply to any act done in

relation to material of a plant variety after the material has been sold in Canada by

the holder or with the holder’s consent, unless that act involves

(a) the further propagation of the plant variety; or

(b) the export of material of the plant variety to a country that does not protect

varieties of the plant genus or species to which the exported plant variety belongs

if the exported material is not intended for consumption.

Definition of material

(2) For the purpose of subsection (1), material means propagating material and

harvested material, including whole plants and parts of plants.

2015, c. 2, s. 5.

Term of plant breeder’s rights

6 (1) The term of the grant of plant breeder’s rights, subject to earlier termination

under this Act, shall be a period of 25 years in the case of a tree, a vine or any

category specified by the regulations and 20 years in any other case. The period

begins on the day on which the certificate of plant breeder’s rights is issued.

Payment of annual fee

(2) A holder of plant breeder’s rights shall, during the term of the grant of those

rights, pay to the Commissioner, within the prescribed time, the prescribed annual

fee.

1990, c. 20, s. 6; 2015, c. 2, s. 5.

Applications for Plant Breeder’s Rights

Application for plant breeder’s rights

7 (1) A breeder or the breeder’s legal representative may make an application to the

Commissioner for the grant of plant breeder’s rights respecting a plant variety if, in

the case of an individual, the breeder or legal representative is a citizen of, or is

resident in, Canada, a country of the Union or an agreement country or, in the case

of a person that is not an individual, the breeder or legal representative has an

establishment in Canada, a country of the Union or an agreement country.

If two or more breeders

(2) If a plant variety is bred by two or more breeders otherwise than independently of

each other, the persons entitled to make an application for the grant of plant

breeder’s rights respecting that variety may make an application jointly and, if any of

those persons refuses to do so or information regarding their whereabouts cannot be

obtained through diligent inquiry, the remainder of those persons may make an

application for that grant.

1990, c. 20, s. 7; 2015, c. 2, s. 6.

8 [Repealed, 2015, c. 2, s. 6]

How application to be made

9 (1) An application for the grant of plant breeder’s rights must

(a) include the prescribed information and be made in the prescribed manner;

(b) be accompanied by the prescribed fee;

(c) be supported by the prescribed documents and any other prescribed material;

and

(d) in the case where the applicant wishes to request that those rights be

exempted from compulsory licensing under subsection 32(1), include the request

and his or her reasons for it.

Agent required for non-resident applicant

(2) An applicant that, in the case of an individual, is not resident in Canada and, in

the case of a person that is not an individual, does not have an establishment in

Canada shall submit the application through an agent resident in Canada.

1990, c. 20, s. 9; 2015, c. 2, s. 7.

Filing date of application

10 (1) Subject to subsection 11(1), the filing date of an application for the grant of

plant breeder’s rights is the date on which the Commissioner has received, in respect

of the application, all of the information, fees, documents and other materials that are

required by subsection 9(1).

Notice of filing date

(2) The Commissioner shall send to the applicant a notice specifying the filing date.

1990, c. 20, s. 10; 2015, c. 2, s. 7.

Priority when breeders breed independently

10.1 In the case of two or more applications respecting a plant variety whose

breeders bred it independently of each other, priority shall be given to the application

with the earliest filing date. If the filing dates of the applications are the same, priority

shall be given to the application pertaining to the breeder that was first in a position

to apply for the plant breeder’s rights respecting the variety or that would have been

first in the position to do so if the provisions under this Act for so doing had always

been in force.

2015, c. 2, s. 7.

Priority when preceding application in country of Union or agreement country

11 (1) If an application made under section 7 is preceded by another application

made in a country of the Union or an agreement country for protection in respect of

the same plant variety and the same breeder, the filing date of the application made

under section 7 is deemed to be the date on which the preceding application was

made in that country of the Union or agreement country and, consequently, the

applicant is entitled to priority in Canada despite any intervening use, publication or

application respecting the variety if

(a) the application is made in the prescribed form within 12 months after the date

on which the preceding application was made in that country of the Union or

agreement country; and

(b) the application is accompanied by a claim respecting the priority and by the

prescribed fee.

Confirmation of claim to priority

(2) A claim respecting priority based on a preceding application made in a country of

the Union or an agreement country shall not be allowed unless, within three months

after the date that would be the filing date of the application if there were no claim

respecting priority, the claim is confirmed by filing with the Commissioner a copy,

certified as correct by the appropriate authority in that country of the Union or

agreement country and accompanied by an English or French translation of the

certified copy, if made in any other language, of each document that constituted the

preceding application.

Supporting evidence

(3) An applicant that is given priority shall provide, within a period of three years after

the date on which the preceding application was made in the country of the Union or

agreement country, evidence that the applicant has begun the tests and trials with

the plant variety referred to in subsection 23(2).

Two or more preceding applications

(4) If an application made under section 7 is preceded by two or more applications

made in different countries of the Union or agreement countries for protection in

respect of the same plant variety and the same breeder, only the first of those

preceding applications is to be taken into account for the purposes of subsection (1).

1990, c. 20, s. 11; 2015, c. 2, s. 7.

Priority conditional on residence, etc.

12 (1) No claim referred to in paragraph 11(1)(b) shall be based on any preceding

application unless it was made by a person who, at the time of the application, was

entitled to make an application under subsection 7(1).

When previous application disregarded

(2) For the purposes of subsection 11(1), no account shall be taken of an application

that was made in a country outside Canada at a time when the plant variety to which

the application relates did not belong to a prescribed category.

1990, c. 20, s. 12; 2015, c. 2, s. 8.

Priority established over previous grant

13 Where priority for an application is established pursuant to this Act, the

Commissioner shall refuse any application against which the priority is established

or, if the priority against it is established after granting on it any plant breeder’s rights,

the Commissioner shall annul the grant and section 36 and paragraph 70(3)(b)

apply, with such modifications as the circumstances require, in respect of the

annulment.

Denominations

Designation of denominations

14 (1) A plant variety in respect of which an application for the grant of plant

breeder’s rights is made shall be designated by means of a denomination proposed

by the applicant and approved by the Commissioner.

Rejection of proposed denomination

(2) Where a denomination is proposed pursuant to subsection (1), the Commissioner

may, during the pendency of the application referred to in that subsection, reject the

proposed denomination, if considered unsuitable for any reasonable cause by the

Commissioner, and direct the applicant to submit a suitable denomination instead.

Suitable denomination

(3) A denomination, in order to be suitable pursuant to this section, must conform to

the prescribed requirements and must not be such as to be likely to mislead or to

cause confusion concerning the characteristics, value or identity of the variety in

question or the identity of its breeder.

International uniformity of denomination

(4) A denomination that the Commissioner approves for any plant variety in respect

of which protection has been granted by, or an application for protection has been

submitted to, the appropriate authority in a country of the Union or an agreement

country must, subject to subsections (2), (3) and (5), be the same as the

denomination with reference to which that protection has been granted or that

application submitted.

Change of denomination

(5) A denomination approved by the Commissioner pursuant to this section may be

changed with the Commissioner’s approval in the prescribed circumstances and

manner.

Denomination must be recognizable

(6) Where a trade-mark, trade name or other similar indication is used in association

with a denomination approved by the Commissioner pursuant to this section, the

denomination must be easily recognizable.

1990, c. 20, s. 14; 2015, c. 2, s. 10.

Approved denomination to be used exclusively

15 After the grant of plant breeder’s rights respecting any plant variety, and even

after the expiry of the term of the grant of those rights, every person who is

designating the variety for the purposes of the sale of propagating material of the

variety shall use the denomination approved by the Commissioner.

1990, c. 20, s. 15; 2015, c. 2, s. 11.

Prior rights not prejudiced

16 Nothing in section 14 or 15 authorizes or requires any person to use, or the

Commissioner to approve any person’s use of, a denomination to the prejudice of

any prior right of another person to the use of any designation.

Direction to change denomination

16.1 If, after the grant of plant breeder’s rights respecting any plant variety, the

Commissioner has reasonable grounds to believe that the use of the denomination is

unsuitable or that the prior rights of another person are prejudiced by its use, the

Commissioner may direct the holder to change the denomination, subject to the

Commissioner’s approval of the new denomination.

2015, c. 2, s. 12.

Summary Disposition of Applications

Rejection of application

17 (1) The Commissioner may reject an application for the grant of plant breeder’s

rights if the application is not consistent with any provision of this Act or the

regulations, including if the plant variety in respect of which the application is made is

not a new variety or if the applicant is not entitled to apply under section 7.

Opportunity for representations before application rejected

(2) The Commissioner shall not reject the application of a person for the grant of

plant breeder’s rights without first giving the person notice of the objections to it and

of the grounds for those objections as well as a reasonable opportunity to make

representations with respect thereto.

1990, c. 20, s. 17; 2015, c. 2, s. 13.

Amendment of application

18 An applicant may, within the period prescribed for so doing, or with leave given by

the Commissioner at the applicant’s request after the expiry of that period, add to or

alter the denomination proposed by that applicant under section 14 or the description

of the plant variety for the purposes of the application.

1990, c. 20, s. 18; 2015, c. 2, s. 14.

Provisional Protection

Applicant’s rights

19 (1) Subject to subsection (2), an applicant for the grant of plant breeder’s rights in

respect of a plant variety has, as of the filing date of the application, the same rights

in respect of the variety that he or she would have under sections 5 to 5.2 if plant

breeder’s rights were to be granted.

When rights in effect

(2) If the applicant is granted plant breeder’s rights, the applicant is, in respect of the

period beginning on the filing date and ending on the date on which the plant

breeder’s rights are granted, entitled to equitable remuneration from any person who,

having been notified in writing by the applicant that the application for those rights

has been filed under this Act, carried out acts that require the authorization of the

applicant.

1990, c. 20, s. 19; 2015, c. 2, s. 14.

Rights extinguished

20 (1) The rights granted under section 19 cease if the application is withdrawn by

the applicant, is rejected or refused or is deemed to have been abandoned under

section 26.

Reinstatement of application

(2) Despite subsection (1), if an application that is deemed to have been abandoned

is subsequently reinstated, the rights granted under section 19 are deemed never to

have ceased.

1990, c. 20, s. 20; 2015, c. 2, s. 14.

Filing date — claim respecting priority

21 For the purposes of sections 19 and 20, with respect to an applicant that has

made a claim respecting priority under section 11, the filing date is the date that

would be the filing date of the application if there were no claim respecting priority.

1990, c. 20, s. 21; 2015, c. 2, s. 14.

Consideration and Disposition of Applications

Making objection to application

22 (1) A person who considers that an application in respect of which particulars

have been published under section 70 ought to be refused on any ground that

constitutes a basis for rejection under section 17 or that a request in the application

for an exemption from compulsory licensing ought to be refused, may, on payment of

the prescribed fee, file with the Commissioner, within the prescribed period beginning

on the date of publication, an objection specifying that person’s reasons. The

prescribed fees are not required in the case of an objection made for the purpose of

this subsection under the authority of the Minister of Industry after notice under

subsection 70(2).

Copy of objection to be sent to applicant

(2) As soon as practicable after the filing of an objection pursuant to subsection (1),

the Commissioner shall send a copy of the objection to the person in respect of

whose application the objection is filed, unless the Commissioner rejects the

objection in accordance with subsection (3).

Rejection of objection

(3) Where it appears to the Commissioner that there is good reason for rejecting an

objection referred to in subsection (2), the Commissioner shall give the person

making the objection a reasonable opportunity to show cause why the objection

should not be rejected and, if the person shows the Commissioner no such cause,

the Commissioner shall reject the objection and give notice accordingly to the

person.

Representations by objector and applicant

(4) If the objection is not rejected in accordance with subsection (3), the

Commissioner shall give the person making the objection and the person in respect

of whose application the objection is filed a reasonable opportunity to make

representations with respect to the objection and shall take those representations

into account before making the decision to refuse the application or to grant plant

breeder’s rights with or without an exemption from compulsory licensing.

Upholding objection

(5) Where the Commissioner upholds an objection made under this section, the

Commissioner shall refuse the application or request therein for exemption

accordingly.

1990, c. 20, s. 22; 1995, c. 1, s. 52; 2015, c. 2, s. 15.

Consideration of applications

23 (1) After the publication under section 70 of the particulars of an application, the

Commissioner shall, in order to ascertain whether it conforms to this Act, consider

the application and all documents and any other material that are submitted to the

Commissioner in connection with the application.

Tests and trials

(2) For the purpose of determining if the plant variety to which the application relates

meets the requirements set out in section 4, the Commissioner shall require the

performance of any tests and trials with the plant variety, under any conditions, as

the Commissioner considers necessary.

Fee and materials

(3) The person on whose part material is submitted for consideration under

subsection (1) shall, without prejudice to the requirements of subsection 9(1) and at

the time and place that the Commissioner directs,

(a) pay the appropriate prescribed examination fee;

(b) provide any of the following that the Commissioner considers necessary for

the purposes of carrying out or evaluating the results of tests and trials with the

plant variety in question:

(i) propagating materials,

(ii) information, whether by way of photographs, drawings, documentation or

otherwise, respecting the plant variety, and

(iii) specimens of the plant variety or of parts of it; and

(c) provide any prescribed information, documents or materials.

1990, c. 20, s. 23; 2015, c. 2, s. 16.

Acceptance of foreign results

24 (1) If the Commissioner obtains from an appropriate authority in any country of

the Union or agreement country the official results of tests and trials referred to in

subsection 23(2) and the Commissioner considers them to be acceptable, the

Commissioner may rely on those results. The person on whose part material is

submitted for consideration under subsection 23(1) shall pay the costs incurred in

obtaining those results.

Submission to foreign tests and trials

(2) The Commissioner may submit to the appropriate authority in a country of the

Union or an agreement country, in order that any necessary tests and trials may be

undertaken in that country with the plant variety in question, anything furnished in

support, as required by subsection 9(1), of an application or in compliance with

subsection 23(3) and the Commissioner may accept such results of any of the tests

and trials as are furnished by that authority.

1990, c. 20, s. 24; 2015, c. 2, s. 17.

Prohibition during pendency of objection

25 Subject to the regulations, where an objection to an application has been filed

under section 22, the Commissioner shall not, before disposal of the objection, carry

out in respect of the application any functions of the Commissioner under section 23

or 24.

Abandonment of application

26 (1) An application shall be deemed to have been abandoned on failure of the

applicant to prosecute the application, whether in default of compliance with

subsection 23(3) or of payment of any fee pursuant to subsection 27(3) or otherwise,

within the prescribed period after the taking on the part of the Commissioner, with

respect to the application, of any action of which the Commissioner gives notice to

the applicant.

Reinstatement of abandoned application

(2) An application deemed abandoned pursuant to subsection (1) may be reinstated

(a) within the prescribed time and on payment of the prescribed fee; or

(b) on petition presented to the Commissioner within the prescribed time

subsequent to the time referred to in paragraph (a) and on payment of the

prescribed fee if the petitioner satisfies the Commissioner that the failure to

prosecute the application was not reasonably avoidable.

1990, c. 20, s. 26; 2015, c. 2, s. 18(F).

Grant, Refusal and Disposal of Plant Breeder’s Rights

Decision of Commissioner

27 (1) If the Commissioner approves a denomination proposed by an applicant under

section 14 and, after consideration of the application in accordance with subsection

23(1) and evaluation of the results of any tests and trials carried out with the plant

variety to which the application relates, the Commissioner is satisfied that the plant

variety meets the requirements set out in section 4 and that the application otherwise

conforms to this Act, the Commissioner shall grant plant breeder’s rights in

accordance with subsection (3).

Refusal

(2) If the Commissioner is not satisfied as described in subsection (1), the

Commissioner shall refuse the application.

Request for exemption

(2.1) In the case where the applicant for plant breeder’s rights has requested that

those rights be exempted from compulsory licensing under subsection 32(1), the

Commissioner may, at the time of the grant of those rights, approve that request if

the Commissioner is satisfied with the reasons given by the applicant for that

request.

Rights granted by issuance of certificate

(3) The Commissioner shall, on payment of the prescribed fee,

(a) enter in the register the particulars required by section 63 in relation to the

plant variety in respect of which the plant breeder’s rights are to be granted; and

(b) make the grant by issuing a certificate of plant breeder’s rights in respect of

the plant variety to the applicant.

Opportunity for representations before refusal of grant

(4) The Commissioner shall not refuse the application of a person for the grant of

plant breeder’s rights without first giving the person notice of the objections to it and

of the grounds for those objections as well as a reasonable opportunity to make

representations with respect thereto.

Destroyed or lost certificates

(5) If a certificate of plant breeder’s rights issued under paragraph (3)(b) is destroyed

or lost, a certified copy may be issued in lieu of that certificate on payment of the

prescribed fee.

1990, c. 20, s. 27; 2015, c. 2, s. 19.

Grant to joint applicants

28 If the Commissioner grants plant breeder’s rights to joint applicants as described

in subsection 7(2), the grant shall be in the names of all those joint applicants.

1990, c. 20, s. 28; 2015, c. 2, s. 20.

29 [Repealed, 2015, c. 2, s. 20]

Maintenance of Propagating Material

Maintenance of propagating material

30 (1) A holder of the plant breeder’s rights respecting a plant variety shall

(a) ensure that he or she is in a position, throughout the period of his or her

registration as the holder, to furnish the Commissioner, on request, with

propagating material of that variety that is capable of reproducing that variety so

that its identifiable characteristics correspond with those taken into account for

the purpose of granting those rights; and

(b) provide the Commissioner at the Commissioner’s request with such facilities,

free of charge, and with such information as the Commissioner deems necessary

in order to be satisfied that the holder is causing the propagating material to be

maintained and is otherwise complying with paragraph (a).

Inspection

(2) Facilities requested under paragraph (1)(b) may include facilities for inspection

and the Commissioner has power to undertake the inspection accordingly for the

purposes of that paragraph.

1990, c. 20, s. 30; 2015, c. 2, s. 21.

Assignment of Plant Breeder’s Rights

Assignment of plant breeder’s rights

31 (1) The Commissioner shall be, in the prescribed manner and within the

prescribed period after the holder of plant breeder’s rights has assigned them,

(a) informed of the name and address of the assignee; and

(b) furnished with such proof of service of a notice of the assignment on any

person granted any of those rights by licence under section 32 as is prescribed or

as the Commissioner, in the absence or in lieu of anything so prescribed or in

addition thereto, requires.

Default precluding registration

(2) An assignee who has not complied with subsection (1) may not be registered as

the holder of the plant breeder’s rights.

Unregistered assignment void against subsequent assignee

(3) An assignment of plant breeder’s rights is void against a subsequent assignee

thereof for valuable consideration without notice who is registered as the holder of

the rights unless, before the subsequent assignee is so registered, the person to

whom that assignment is made is registered as holder of the rights.

Compulsory Licences

Grant of compulsory licences

32 (1) Subject to subsections (2) to (6) and the regulations and if the Commissioner

considers that it is appropriate to do so, the Commissioner may, on application by

any person, authorize the doing of any act described in any of paragraphs 5(1)(a) to

(g) by granting the person a compulsory licence.

Objectives on granting compulsory licence

(2) In disposing of an application for, and settling the terms of, a compulsory licence

pursuant to this section in relation to any plant variety, the Commissioner shall

endeavour to secure that

(a) the plant variety is made available to the public at reasonable prices, is widely

distributed and is maintained in quality; and

(b) there is reasonable remuneration, which may include royalty, for the holder of

the plant breeder’s rights respecting the plant variety.

Provision as regards propagating material

(3) A compulsory licence under this section may include terms requiring the holder of

the plant breeder’s rights affected by the licence to make propagating material

available to the holder of the compulsory licence.

Variation and revocation of licence

(4) The Commissioner may at any time, on representations made by any interested

person, extend, limit, vary or revoke a compulsory licence granted pursuant to this

section.

Representations by persons adversely affected

(5) The Commissioner shall not dispose of any application for, or settle the terms of,

a compulsory licence pursuant to this section or exercise jurisdiction pursuant to

subsection (4) without giving interested persons who will be adversely affected by

the Commissioner’s decision a reasonable opportunity to make representations with

respect thereto pursuant to such notice as the Commissioner deems it appropriate to

give.

Compulsory licence not to be exclusive

(6) No compulsory licence that is an exclusive licence shall be granted pursuant to

this section.

1990, c. 20, s. 32; 2015, c. 2, s. 22.

Concurrent compulsory and other licences permissible

33 (1) A person applying for a compulsory licence may be granted it pursuant to

section 32, whether or not that or any other person has a licence, including an

exclusive licence granted by the holder, in relation to the plant breeder’s rights that

the compulsory licence affects.

No contracting out

(2) An agreement is invalid to the extent that it purports to bind any person not to

apply for a compulsory licence or to apply for a grant thereof on any particular terms.

Annulment and Revocation of Grants

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.

Revocation of plant breeder’s rights

35 (1) The Commissioner may, prior to the end of the term fixed by subsection 6(1)

for a grant of any plant breeder’s rights, revoke the rights if the Commissioner is

satisfied that

(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.

Procedure

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 holder of those rights;

(b) any person licensed under section 32 to exercise any of those rights; and

(c) any person who appears to the Commissioner to be otherwise sufficiently

interested in any of those rights.

Objection

(2) Within

(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.

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.

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).

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

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.

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).

Agents

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.

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.

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.

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.

Civil Remedies

Infringement

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.

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.

Appeals

(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).

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.

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.

Section 43 not impaired

(3) Nothing in this section impairs the jurisdiction of the Federal Court under section

43.

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.

Idem

(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.

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]

Declaration

(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.

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.

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.

Restriction

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.

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.

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.

Defence

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.

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).

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.

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.

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).

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.

Limitation

(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.

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.

Idem

(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.

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).

Offences

Secrecy

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.

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.

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.

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.

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.

Definition of representation

(6) In this section, representation includes any manner of express or implied

representation, by whatever means it is made.

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.

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.

Certificate of examiner as proof

54 A certificate purporting to be signed by an officer of the Plant Breeders’ Rights

Office who is appointed or designated a principal examiner, stating that a substance

or a sample submitted to that examiner by any other officer of that Office has been

examined by that examiner and stating the result of the examination is admissible in

evidence in any prosecution for an offence under this Act without proof of the

signature or official character of the person appearing to have signed the certificate

and, in the absence of evidence to the contrary, is proof of the statements contained

in the certificate.

1990, c. 20, s. 54; 2015, c. 2, s. 38(F).

Plant Breeders’ Rights Office 55 [Repealed, 1997, c. 6, s. 77]

Plant Breeders’ Rights Office

56 (1) The Plant Breeders’ Rights Office is part of the Canadian Food Inspection

Agency established by the Canadian Food Inspection Agency Act.

Commissioner

(2) The President of the Canadian Food Inspection Agency shall designate a

Commissioner of Plant Breeders’ Rights.

Employees

(3) The President of the Canadian Food Inspection Agency has the authority to

appoint the employees of the Plant Breeders’ Rights Office.

Functions of Commissioner

(4) The Commissioner shall receive all applications, fees, documents and materials

submitted for plant breeders’ rights, shall do all things necessary for the granting of

plant breeders’ rights and for the exercise of all other powers conferred, and the

discharge of all other duties imposed, on the Commissioner under this Act and shall

have the charge and custody of the register and any other documents or materials

belonging to the Plant Breeders’ Rights Office.

Absence, etc., of Commissioner

(5) Where the Commissioner is absent or unable to act or the office of Commissioner

is vacant, such other officer as may be designated by the President of the Canadian

Food Inspection Agency shall, in the capacity of Acting Commissioner, exercise the

powers and perform the duties of the Commissioner.

1990, c. 20, s. 56; 1997, c. 6, s. 78; 2015, c. 2, s. 39.

Officers and employees not to acquire plant breeder’s rights

57 A person who has been appointed as an officer or employee of the Plant

Breeders’ Rights Office may not, during the period for which the person holds the

appointment and for one year thereafter, apply for the grant of any plant breeder’s

rights or acquire directly or indirectly, except under a will or on an intestacy, any right

or interest in any such grant.

Delegation

58 (1) The Commissioner may in writing authorize, either generally or particularly,

such officers or employees of the Plant Breeders’ Rights Office as the Commissioner

deems fit to exercise and perform, subject to any general or special directions given

or conditions attached by the Commissioner, all or any of the powers conferred and

duties imposed on the Commissioner by or pursuant to this or any other Act.

Presumption of authority

(2) Every person purporting to act pursuant to any authorization under this section

shall, in the absence of evidence to the contrary, be presumed to be acting in

accordance with the terms of the authorization.

Engagement of services

59 (1) The Commissioner

(a) for the purposes of carrying out and evaluating the results of tests and trials

referred to in section 23, may engage the services of persons other than

employees of the Canadian Food Inspection Agency and pay to those persons

fees in accordance with a scale determined by the Minister, with the approval of

the Treasury Board, in respect of their services; and

(b) may constitute panels of persons, composed of employees of the Agency or

persons appointed or engaged pursuant to paragraph (a), which have the

function of conducting examinations for purposes described in that paragraph and

of advising the Commissioner as to

(i) the examinations necessary or expedient for those purposes, and

(ii) the results of those examinations.

Discretion unaffected

(2) Nothing in subsection (1) prejudices any discretion exercisable by the

Commissioner.

1990, c. 20, s. 59; 1997, c. 6, s. 79.

Seal of office

60 (1) The Commissioner shall cause a seal to be made for the purposes of this Act

and each certificate of plant breeder’s rights issued under paragraph 27(3)(b) to be

sealed with that seal. The Commissioner may also cause any other instrument or

copy of any document issuing from the Plant Breeders’ Rights Office to be sealed

with that seal.

Notice of seal and other documents

(2) Every court, judge and person shall take notice of the seal of the Plant Breeders’

Rights Office and shall admit impressions of the seal in evidence without proof

thereof and shall take notice of and admit in evidence, without further proof and

without production of the originals, all copies or extracts certified under the seal to be

copies of or extracts from documents on file in that Office.

1990, c. 20, s. 60; 2015, c. 2, s. 40(E).

Time limit extended

61 Where any time limit or period of limitation specified by or under this Act expires

on a day when the Plant Breeders’ Rights Office is closed for business, that time limit

or period of limitation shall be deemed to be extended to the next day when that

Office is open for business.

Records

Index

62 The Commissioner may prepare an index of names, together with descriptions

comprising particulars of distinguishing identifiable characteristics, of such plant

varieties in each of the prescribed categories as are ascertainable by the

Commissioner to exist as a matter of fact within common knowledge.

Register

63 The Commissioner shall keep a register of plant breeders’ rights and, subject to

the payment of any fee required under this Act to be paid in the case of any entry in

the register, the Commissioner shall enter in it

(a) in relation to each plant variety that is the subject of those rights, the

prescribed category to which it belongs;

(b) the denomination of the variety, and any change to that denomination;

(c) the full name and address of the breeder of that variety;

(d) the name and address of the person whom the Commissioner is satisfied, in

the manner provided by or under this Act, ought to be registered as the holder of

the plant breeder’s rights respecting that variety;

(e) the date of the grant of plant breeder’s rights respecting that variety;

(f) the date of, and the reason for, any termination or invalidation of plant

breeder’s rights;

(g) if plant breeder’s rights are the subject of a compulsory licence under section

32, a statement to that effect;

(h) the prescribed particulars of each application for the grant of plant breeder’s

rights and of any abandonment or withdrawal of the application; and

(i) the prescribed particulars, subject to the provisions of this Act and the

regulations, that are considered by the Commissioner to be appropriate for entry

in the register.

1990, c. 20, s. 63; 2015, c. 2, s. 41.

Evidence of registered matters

64 (1) The register is evidence of all matters entered in it as directed or authorized by

this Act.

Certified copy or extract

(2) A document purporting to be a copy of any entry in, or an extract of any contents

of, the register and to be certified by the Commissioner to be a true copy or extract is

evidence of the entry or contents without further proof or production of the register.

1990, c. 20, s. 64; 2015, c. 2, s. 42(F).

Certificate of Commissioner

65 A certificate purporting to be made by the Commissioner to the effect that an

entry has or has not been made in the register or that any other thing authorized by

or under this Act to be done in the course of the administration of this Act has or has

not been done is evidence of the matters specified in that certificate.

1990, c. 20, s. 65; 2015, c. 2, s. 43(F).

Rectification of errors

66 (1) Subject to subsection (2), the Commissioner may, on such terms, if any, as

the Commissioner deems proper, authorize

(a) the correction of any clerical error or error in translation appearing in a

certificate of plant breeder’s rights issued under paragraph 27(3)(b), in an

application for plant breeder’s rights, in any document filed for the purposes of

such an application or in the register or index;

(b) the amendment of any document that belongs to the Plant Breeders’ Rights

Office and in respect of which no express provision for its amendment is made in

this Act; and

(c) the condonation or correction of any procedural irregularity in any proceedings

subject to the authority of the Commissioner.

When rectification permissible

(2) Any power conferred by subsection (1) may, of the Commissioner’s own motion

or on request in writing, be exercised if, but only if, that exercise of the power is in

the interests of the due administration of this Act and is not prejudicial to the interests

of justice.

Opportunities for representations by interested persons

(3) The Commissioner, if intending to exercise any power pursuant to subsection (1),

shall give notice of the intention to each person appearing to the Commissioner to

have an interest in the matter and shall not carry out the intention without first giving

that person a reasonable opportunity to make representations with respect thereto.

1990, c. 20, s. 66; 2015, c. 2, s. 44(E).

Preservation of documents

67 (1) An application for the grant of plant breeder’s rights and other documents filed

with the Commissioner in connection with any such rights shall, subject to subsection

(3), be preserved for the prescribed periods.

Public accessibility

(2) The Commissioner shall make the following accessible to the public on the

Internet and, if the Commissioner considers it appropriate, by any other means:

(a) the register;

(b) the index; and

(c) any documents referred to in subsection (1) that are prescribed and any other

documents that should, in the Commissioner’s opinion, be made accessible to the

public.

Withdrawn application papers to be returned

(3) Where an application for plant breeder’s rights has been withdrawn, the

Commissioner shall return to the applicant at the address indicated in the application

all the papers and other material submitted in connection with the application but, to

any extent to which it is impracticable for the Commissioner to do so, and on the

expiration of the prescribed period for so doing, the Commissioner shall destroy the

material.

(4) [Repealed, 2015, c. 2, s. 45]

1990, c. 20, s. 67; 2015, c. 2, s. 45.

Service of notices, etc.

68 (1) A notice or other document required to be given or transmitted to any person

pursuant to this Act may be given or transmitted

(a) by delivering it to the person;

(b) by sending it by registered mail addressed to the person at any place

pursuant to notice thereof given by the person or, if no such notice is given, at the

person’s usual or latest known address in Canada; or

(c) in any other manner prescribed.

Deemed delivery

(2) Where any notice or other document is sent by registered mail pursuant to

subsection (1), it shall, in the absence of evidence to the contrary, be deemed to be

given or transmitted at the time at which the registered letter containing it would be

delivered in the ordinary course of post.

1990, c. 20, s. 68; 2015, c. 2, s. 46(F).

Defect not to invalidate notices

69 A defect in a notice given pursuant to this Act, if the notice is such as to intelligibly

and substantially effect the required notification, shall not render unlawful any

administrative action executed in respect of the matter to which the notice relates

and shall not be a ground for exception to any legal proceeding that may be taken in

respect of that matter.

Publication

Matters to be published

70 (1) The Commissioner shall cause to be published in the Canada Gazette such

particulars of the following as are prescribed:

(a) every application that is not rejected pursuant to section 17;

(b) every request included pursuant to subsection 9(1) in an application that is not

rejected pursuant to section 17;

(c) and (d) [Repealed, 2015, c. 2, s. 47]

(e) every grant or refusal to grant plant breeder’s rights;

(f) every assignment of plant breeder’s rights of which the Commissioner is

informed;

(g) every application for a compulsory licence;

(h) every grant or refusal to grant a compulsory licence and every thing done

under subsection 32(4) with respect to a compulsory licence; and

(i) every surrender of plant breeder’s rights.

Notice to Department of Industry

(2) The Commissioner shall, on causing particulars of a request referred to in

paragraph (1)(b) to be published, give notice of the request to the Department of

Industry.

Matters to be published

(3) In addition to the matters referred to in subsection (1), the Commissioner shall

cause to be published in the Canada Gazette

(a) such other matters as the Commissioner considers appropriate for public

information; and

(b) a notice of every annulment under section 34 or revocation under section 35.

1990, c. 20, s. 70; 1995, c. 1, s. 53; 2015, c. 2, s. 47.

Provision for publication of Plant Varieties Journal

71 (1) Where the volume of matters to be published in the Canada Gazette pursuant

to section 70 is such as to warrant their inclusion wholly or partly in a separate

journal, the Commissioner may cause to be published periodically a journal, to be

called the Plant Varieties Journal, containing such of those matters as the

Commissioner, subject to any regulations made pursuant to paragraph 75(1)(g),

considers expedient.

Notice of intention to publish Journal

(2) The Commissioner shall, by publication in the Canada Gazette, at least twenty-

eight days before commencing the issue of the Plant Varieties Journal, give notice of

intention to do so.

Cessation of publication of Journal

(3) If at any time the volume of matters for the publication of which the Plant Varieties

Journal is available ceases to be such as described in subsection (1), the

Commissioner may cause the issuing of the Plant Varieties Journal to cease but, at

least twenty-eight days before doing so, the Commissioner shall, by publication in

that Journal, give notice of intention to do so.

Publication in Journal to be deemed publication in Canada Gazette

(4) For the purposes of this Act other than of subsections (2) and 75(2), publication in

the Plant Varieties Journal pursuant to this Act shall be deemed to be publication in

the Canada Gazette and references in this Act to the Canada Gazette shall be

construed accordingly.

Ignorance no defence in the event of publication

72 (1) Where in any civil, criminal or other proceedings a person’s knowledge or

notice, at any time, of any matter is relevant for the purpose of determining any

question whether, pursuant to this Act, liability has been incurred, any right has been

acquired or any thing has been duly done, the person shall, for that purpose, be

deemed to have had the relevant knowledge or notice at that time if, prior thereto,

the matter or notice thereof is published in the Canada Gazette.

Knowledge or notice, otherwise attributable, unaffected

(2) Nothing in subsection (1) prevents any question referred to therein from being

determined on the ground that the person had the relevant knowledge or notice, if

lawfully attributable to the person, apart from that subsection.

1990, c. 20, s. 72; 2015, c. 2, s. 48(F).

Advisory Committee

Constitution

73 (1) The Minister shall constitute an advisory committee on any terms and

conditions determined by the Minister.

Composition

(2) The advisory committee shall be composed of persons appointed by the Minister

from among representatives of organizations of breeders of plant varieties, dealers in

seeds, growers of seeds, farmers, horticulturists and of any other interested persons

considered appropriate by the Minister.

Function

(3) The function of the advisory committee is to assist the Commissioner in the

application of this Act, including

(a) the manner in which the Act is to be applied in respect of each category;

(b) the requirements applicable in respect of each category, including those

requirements relating to licensing; and

(c) the interpretation of the expressions “reasonable prices”, “widely distributed”

and “reasonable remuneration” for the purposes of section 32.

Remuneration

(4) No terms or conditions determined under subsection (1) shall provide for any

remuneration to be payable to any of the persons acting on the advisory committee,

but those persons may be paid any reasonable travel and living expenses incurred

by them when engaged on the business of the committee while absent from their

ordinary places of residence.

1990, c. 20, s. 73; 2015, c. 2, s. 49(F).

Committee’s advice not binding

74 Nothing in this Act or the regulations shall be construed to impose any obligation

to conform to the advice of the advisory committee.

Regulations

Regulations

75 (1) The Governor in Council may make regulations for carrying out the purposes

and provisions of this Act and, without limiting the generality of the foregoing, may

make regulations

(a) fixing the fees that a person may be required to pay in respect of any services

provided by the Commissioner or by any person authorized by the Commissioner

and providing for the time and manner in which the fees are to be paid and the

circumstances in which the fees may be refunded in whole or in part;

(b) limiting, extending or providing for the extension, whether before or after the

expiration, of the period for doing anything pursuant to this Act;

(c) defining the meanings of the words and expressions commercially

acceptable, description, designation, identifiable characteristics,

reasonably priced, recently prescribed category, representations, tree, vine

and widely distributed for the purposes of this Act;

(c.1) prescribing, for the purposes of paragraph 5(1)(b), any acts that are to be

considered as the conditioning of propagating material;

(c.2) specifying categories for the purposes of subsection 6(1);

(d) respecting the publication in the Trade Marks Journal of information relating to

proposals, approvals and changes of denominations;

(e) establishing principles to be observed by the Commissioner in disposing of

applications for compulsory licences and, particularly, in complying with

subsection 32(2);

(f) designating any entity as an agreement country for the purposes of any of the

provisions of this Act or the regulations, with a view to the fulfilment of an

agreement concerning the rights of plant breeders made between Canada and

that entity, and, despite anything in this Act, qualifying or restricting any rights or

other benefits under this Act;

(g) distinguishing the kind of matters to be published in any of the ways

contemplated by subsection 71(1);

(h) assigning powers or duties to persons employed by the Canadian Food

Inspection Agency or designated by the President of the Agency to administer or

enforce this Act or appointed or engaged pursuant to subsection 59(1);

(i) providing for the organization, including fixing the times of operation and

closure, of the Plant Breeders’ Rights Office, panels constituted under paragraph

59(1)(b) and the business thereof;

(j) specifying or defining methods, procedural requirements or conditions that

shall be observed or may, at the discretion of the Commissioner, be adopted or

imposed for the purpose or in the course of instituting, proceeding on, dealing

with or disposing of any applications, objections, requests, representations,

examinations, tests, trials or matters involving investigation or requiring

determination by or under the authority of the Commissioner;

(k) respecting the granting of plant breeder’s rights with an exemption, under

subsection 27(2.1), from compulsory licensing, including the circumstances in

which the exemption may be given or revoked by the Commissioner, the terms

and conditions on which the exemption may be given and the factors that are to

be taken into account before the exemption is revoked;

(l) prescribing

(i) the information to be entered in, and the forms of, the register, the index,

applications for plant breeders’ rights and any other record, instrument or

document to be kept, made or used for the purposes of this Act, and

(ii) the means, factors or criteria for determining whether the existence of a

plant variety is a matter of common knowledge for the purposes of paragraph

4(2)(b) or section 62;

(l.1) respecting any classes of farmers or plant varieties to which subsection 5.3

(2) is not to apply;

(l.2) respecting the use of harvested material under subsection 5.3(2), including

any circumstances in which that use is restricted or prohibited and any conditions

to which that use is subject;

(m) respecting the procedure for review of cases involving decisions given by the

Commissioner pursuant to any provision of this Act; and

(n) prescribing any matter required or authorized by this Act to be prescribed.

Publication of proposed regulations

(2) Subject to subsection (3), a copy of each regulation that the Governor in Council

proposes to make pursuant to this Act shall be published in the Canada Gazette and

a reasonable opportunity shall be given to interested persons to make

representations with respect thereto.

Exemptions

(3) Subsection (2) does not apply in respect of a proposed regulation that

(a) has been published pursuant to that subsection, whether or not it has been

amended as a result of representations made pursuant to that subsection; or

(b) makes no material substantive change in an existing regulation.

1990, c. 20, s. 75; 1997, c. 6, s. 80; 2015, c. 2, s. 50.

Seeds Act

Seeds Act unaffected

76 (1) Nothing provided or granted by or under this Act shall be construed as

conferring authority for

(a) any seed to be sold, imported, exported or advertised, or

(b) any name, mark or label to be applied in connection with any seed,

contrary to the Seeds Act or any regulations thereunder.

Definition of “seed”

(2) In subsection (1), seed has the meaning assigned to that expression by section 2

of the Seeds Act.

Review of Act

Report

77 (1) As soon as practicable after the expiration of the period of ten years beginning

on the day of the coming into force of this Act, the Minister shall prepare a report with

respect to the administration of this Act during the period and shall cause a copy of

the report to be laid before each House of Parliament on any of the first fifteen days

on which that House is sitting after it is completed.

Contents of report

(2) The report prepared pursuant to subsection (1) shall indicate whether the

operation of this Act

(a) results in

(i) the stimulation of investment in businesses involving the breeding of plant

varieties in respect of which protection afforded by plant breeders’ rights is

applicable,

(ii) any improvement in facilities to obtain foreign varieties of plants in the

interests of agriculture in Canada,

(iii) protection abroad, for commercial purposes, of Canadian plant varieties,

(iv) improvement of plant varieties to the public benefit, and particularly, to the

benefit of farmers and nurserymen, and

(v) any other public advantage,

(b) has some but not all of the results described in paragraph (a),

(c) has all or any of those results but is, in any respect, not in the public interest,

or

(d) is, in the total absence of those results, not in the public interest,

as the case may be, and particulars of anything so indicated shall be furnished in the

report.

Annual report

78 The Minister shall each year prepare a report with respect to the administration of

this Act during the preceding calendar year and shall lay it before Parliament on any

of the first fifteen days that either House of Parliament is sitting after he completes it.

Transitional Provisions

Plant breeders’ rights — previously granted

79 This Act, as it reads on or after the day on which this section comes into force,

does not apply with respect to plant breeders’ rights granted before that day, but this

Act, as it read immediately before that day, continues to apply with respect to those

rights.

1990, c. 20, s. 79; 2015, c. 2, s. 51.

Existing applications

80 An application for the grant of plant breeder’s rights that was made before the day

on which this section comes into force and that was not disposed of before that day

is to be dealt with and disposed of in accordance with this Act. However, if plant

breeder’s rights are granted to the applicant, sections 19 to 21, as they read

immediately before the day on which this section comes into force, continue to apply

with respect to those rights.

1990, c. 20, s. 80; 2015, c. 2, s. 51.

Existing proceedings

81 A proceeding commenced under this Act before the day on which this section

comes into force that, on that day, is pending before a court and in respect of which

no decision has been made shall be dealt with and disposed of in accordance with

this Act as it read immediately before that day.

1990, c. 20, s. 81; 2015, c. 2, s. 51.

Coming into Force

Coming into force

*82 This Act comes into force on a day to be fixed by order of the Governor in

Council.

*[Note: Act in force August 1, 1990, see SI/90-99.]