Executive Summary: Key Legal and Evidentiary Issues

• Dispute involved alleged patent infringement and breach of a licensing contract related to canola seed.

• The enforceability of the Liberty & Trait Agreement (LTA) was challenged based on alleged lack of consideration and misrepresentation.

• The necessity of detailed evidence regarding the specific patents and their infringement at the interlocutory stage was contested.

• Procedural fairness issues included urgency, abridgement of service, and opportunity to respond to the application.

• Admissibility of affidavit evidence was questioned, but no objections were raised at the initial hearing.

• The court considered whether the appeal was moot due to completion of the evidence preservation actions.

Facts and outcome of the case

Background and procedural history

Larry Mosiuk and Joy Skrapek, who farm near Kamsack, Saskatchewan, were defendants in an action commenced by BASF Canada Inc. BASF suspected that Mr. Mosiuk had planted a canola crop in violation of its patent rights and the terms of the Liberty & Trait Agreement (LTA), which prohibits the use of bin-run seed to grow a second-generation crop. BASF acquired Bayer CropScience Inc.’s rights under the LTA in August 2018. On July 24, 2024, BASF commenced an action against Mr. Mosiuk and Ms. Skrapek for breach of contract and patent infringement.

BASF applied for an interlocutory injunction and preservation order under Rules 6-41 and 6-44 of The King’s Bench Rules. The order required Mr. Mosiuk and Ms. Skrapek to disclose the location of their canola crops, authorized BASF to enter the land and take leaf samples, allowed destructive testing of the samples, and restrained the appellants from obstructing these actions. The application was considered urgent due to the limited time available to collect viable leaf samples. An ex parte order abridged the time for service from 14 days to 5 days. The order was granted by the Court of King’s Bench.

Arguments and issues on appeal

Mr. Mosiuk and Ms. Skrapek appealed, arguing that the chambers judge made jurisdictional, legal, and evidentiary errors. They asserted that the LTA was unenforceable due to lack of consideration and misrepresentation, and that BASF had not provided sufficient evidence of the specific patents at issue. They also raised procedural concerns, including the timing of the application and the admissibility of certain affidavit evidence. BASF argued that the appeal was moot because the evidence collection had already occurred, but the court decided to hear the appeal.

Court’s analysis

The court found that, even if the appeal was moot, it should be heard in the interests of justice. The court concluded that the LTA was supported by consideration, as it provided Mr. Mosiuk the right to use InVigor seed. The court held that, at the interlocutory stage, it was sufficient for BASF to establish a serious issue to be tried regarding breach of contract and patent infringement, without requiring detailed evidence of the specific patents or their infringement. The court rejected the arguments about misrepresentation and found no error in the chambers judge’s handling of the evidence, noting that no objections to admissibility were raised during the hearing.

Outcome and costs

The appeal was dismissed, and the order in favor of BASF was upheld. The court awarded costs to BASF Canada Inc. in accordance with Rule 54(1) of The Court of Appeal Rules. The judgment did not address the admissibility or use of the test results in evidence in the Court of King’s Bench, and no damages were awarded.