Executive Summary: Key Legal and Evidentiary Issues

• Liability for infringement of plant breeders’ rights was established through default of defence, resulting in deemed admissions of the pleaded facts.
• The Court addressed the admissibility of affidavit evidence, striking portions of the defendant’s affidavit as improper opinion, contradiction of prior evidence, or otherwise objectionable, while accepting an investigation report despite a hearsay challenge.
• An attempted “corporate shield” defence was rejected, with the Court holding that Mr. Fournier could not avoid personal liability by relying on his farming corporation where he personally carried out the infringing conduct.
• The main evidentiary challenge concerned quantifying damages for unauthorized sales of CDC Verona seed over multiple crop years, leading the Court to accept a “Missing Grain Formula” based on crop insurance data and levies per bushel, adjusted downward to reflect farming uncertainties.
• Requests for permanent injunctive relief and solicitor-client costs were carefully scrutinized, resulting in refusal of a permanent injunction and an award of standard tariff costs (Column 3) instead of elevated costs.
• The Court found the defendant’s litigation conduct—including non-cooperation, failure to provide records, and a prior contempt finding—relevant to credibility, adverse inferences, and punitive damages, supporting a significant award of general and punitive damages.

Background and statutory framework

This case arose from the alleged infringement of plant breeders’ rights in a durum wheat variety known as CDC Verona. The University of Saskatchewan’s Crop Development Centre developed CDC Verona and obtained Plant Breeders’ Certificate No. 4101 from the Canadian Food Inspection Agency’s Plant Breeders’ Rights Office. The certificate granted plant breeders’ rights protection, including exclusive rights relating to the sale of certified seed.
The University licensed Patterson Grain to sell CDC Verona certified seed, and Patterson Grain sub-licensed Alliance Seed Corporation (Alliance), then its subsidiary, to sell that certified seed. Alliance therefore held the commercial rights to market the certified Verona seed and brought this action in that capacity to enforce the exclusive right to sell the variety. The University was joined as a party because of its interest as certificate holder and licensor, but no relief was sought against it, and the governing statute barred costs against the University.
The key statutory framework was the Plant Breeders’ Rights Act. Section 5(1) confers on the rights holder the exclusive right to sell the protected variety, and the statute adopts a broad definition of “sell” that includes advertising, offering, or otherwise disposing of the variety for consideration. Civil remedies for infringement are set out in section 41, which makes an infringer liable for all damages sustained by the holder and permits the Court to grant a wide range of relief, including injunctions, compensation, inspection and accounting, and orders concerning offending material. Jurisdiction to hear such actions is conferred on the provincial superior court by section 42.
The Act’s monopoly protections are limited by what is commonly called “farmers’ privilege.” Farmers who lawfully purchase certified seed may sell the resulting grain and use harvested seed for re-seeding on their own land. However, they may not sell that saved seed as seed to other farmers in competition with the rights holder or its licensees. Section 5.3 sets out these permitted use exemptions. The core question in this case was whether the farmer defendant’s conduct stepped outside this privilege and into infringing sales.

Facts and procedural history

Alliance became aware in 2015 that Guy Fournier, a farmer in the Rural Municipality of Glen Bain No. 105 near Kincaid, Saskatchewan, might be advertising and selling CDC Verona seed. Alliance’s lawyers wrote a series of letters to Mr. Fournier beginning in March 2015, warning of infringement and demanding records of seed and grain sales. Despite this early notice and repeated follow-ups in 2015 and 2017, those records were not produced.
On March 3, 2017, Alliance filed a Statement of Claim against Mr. Fournier and the University of Saskatchewan. Alliance alleged that, on various dates including at least 2015, Mr. Fournier had infringed its plant breeders’ rights by purchasing, growing, advertising, and selling CDC Verona certified seed without authorization. Service was effected on Mr. Fournier in April 2017, but he did not file a defence, and he was noted in default in May 2017.
Over the following years, the Court supervised several procedural steps aimed at obtaining discovery and compliance. In April 2019, Gabrielson J. ordered Mr. Fournier to produce documents and attend for questioning. Mr. Fournier was served but failed to attend the scheduled questioning or produce documents. Alliance eventually brought a contempt application. In March 2021, Acton J. granted an order finding civil contempt and authorized a warrant of committal, along with a significant costs award. Although the initial warrant was not executed due to policing and public health circumstances, further appearances followed.
Mr. Fournier later appeared before Robertson J., apologized, and paid the $10,000 costs ordered by Acton J. He ultimately attended questioning in June 2021, and a subsequent fiat held that he had purged his contempt, with a further $2,000 costs award, plus additional costs orders in connection with undertakings and other procedural defaults. Nonetheless, the record showed ongoing non-cooperation: incomplete responses to undertakings, refusals to seek readily available information from an accountant or insurers, and an overall pattern of delayed and partial disclosure.

The application for default judgment

Given that Mr. Fournier had never filed a statement of defence despite proper service, Alliance applied under Rule 3-26 of The King’s Bench Rules for judgment in default of defence. That rule allows the Court, on such a default, to order whatever judgment it considers the plaintiff is entitled to, with or without additional evidence, though the Court retains discretion whether to require proof of the claim.
In Canadian practice, failure to defend typically results in the pleaded factual allegations being deemed admitted, both by operation of the default rules and under Rule 13-18, which provides that un-denied factual allegations in pleadings are taken as admitted. In this case, the Court followed that approach: the default meant that the causes of action and the right to some damages were effectively conceded, absent exceptional circumstances. The main remaining questions were (1) whether any late-raised defences could undermine liability, and (2) what amount and forms of relief should be granted.
Alliance supported its application with a detailed affidavit from its representative, Jody Karlowsky, as well as other materials, including an investigation report describing online advertising of Verona seed by Mr. Fournier, crop insurance data, and a damages analysis. Mr. Fournier responded with his own affidavit and a brief of law. Alliance then filed a Notice of Objection to parts of Mr. Fournier’s affidavit, arguing that certain passages were abusive, contradictory to earlier sworn evidence, improper opinion or argument, hearsay, or irrelevant.

Admissibility of affidavit evidence

The Court dealt first with the preliminary evidentiary dispute. On Alliance’s objection, the judge considered the established practice that objections to affidavits on chambers applications should be dealt with in a clear, summary manner, with the record indicating which portions are struck and why. Applying this approach, the judge struck several paragraphs of Mr. Fournier’s affidavit that were found to offend evidentiary rules, including portions that contradicted earlier testimony or amounted to improper argument and speculation.
However, the Court declined to strike other passages, particularly those describing common farming risks (such as weather, pests, and yield variability) that fell within Mr. Fournier’s personal knowledge as a farmer. Those were treated as “personal experience” rather than expert opinion, and in any event as matters of common knowledge in Saskatchewan, capable of being judicially noticed. The Court likewise allowed a paragraph in which Mr. Fournier advanced a “corporate shield” theory as more in the nature of a legal position than a factual assertion.
Mr. Fournier also attempted, belatedly and without a formal objection, to exclude the investigation report attached to the Karlowsky affidavit as hearsay. The Court rejected this challenge, noting the absence of a proper notice of objection and treating the hearsay issue as going to weight rather than admissibility. Given the default and the broader evidentiary record, the judge found the report relevant and persuasive, particularly in corroborating that Mr. Fournier had advertised Verona seed for sale.

Liability for infringement and rejection of defences

Turning to liability, the Court held that the default in defence, combined with the operation of Rule 13-18, meant that the factual allegations in the Statement of Claim—including that Mr. Fournier had advertised and sold CDC Verona certified seed—were deemed admitted. The judge further found that there were no “exceptional circumstances” justifying departure from the usual rule that a defaulting defendant is taken to have conceded the cause of action and the right to some damages.
Even if the Court had looked beyond the pleadings, the surrounding materials—such as the correspondence, the investigation report, and Mr. Fournier’s limited and inconsistent discovery—would have supported the same conclusion. The judge drew adverse inferences from Mr. Fournier’s refusal or failure to produce records and his evasive or contradictory answers in questioning, including a striking inconsistency in his claimed recollection of crop details: he initially professed to have no memory of seed or yields for certain years, but later gave specific yield figures “based on [his] memory” for those same periods.
The Court then addressed three specific defences raised in Mr. Fournier’s affidavit and argument, even though none had been properly pleaded:

• Lack of particularity: Mr. Fournier argued that the claim was insufficiently specific. The Court rejected this, holding that the Statement of Claim was adequate and that if particulars were desired, his recourse was to request them or rely on discovery, which had been pursued by Alliance.
• Corporate shield: Mr. Fournier contended that any sales were made through his company, G.F. Farms Ltd., so only the corporation, not he personally, could be liable. The Court held that this argument was unavailable in any event because it had not been pleaded, and, substantively, that he could not rely on a corporation he controlled as sole shareholder to shield himself while he personally carried out statutory contraventions. The infringing acts required a human actor, and both he and his corporation could be liable.
• Temporal limitation to 2015: Mr. Fournier pointed to references to 2015 in the pleadings and argued that liability should be confined to that year. The Court disagreed, noting that the Statement of Claim expressly referred to various dates “including at least 2015” and that the supporting affidavit alleged infringement “since at least 2016” and included estimated production over multiple years.

Approach to remedies and relief

Once liability was confirmed, the Court turned to the range of remedies available under the Plant Breeders’ Rights Act. Sections 41 and 42 permit the Court to award damages, injunctions, compensation, inspection or accounting orders, and orders regarding offending materials, and make clear that those examples do not limit the Court’s remedial discretion.
The Court also noted that Rule 3-26 of The King’s Bench Rules, unlike the rules addressing liquidated claims, expressly permits default judgments for relief beyond fixed sums, including declaratory and injunctive remedies. In a similar vein, the judge recognized that actions of this type could, in principle, proceed on either of two compensatory tracks commonly used in IP cases: (1) an award of general damages based on the rights holder’s loss, or (2) an accounting of profits based on the infringer’s gain. Alliance’s pleadings were drafted broadly enough to capture both theories, although its application focused on general damages supported by a formulaic analysis.

Declaratory relief

The Court first addressed declaratory relief. Under section 3-3 of The King’s Bench Act, a judge may issue binding declarations of right even where no further relief is claimed. Given the admitted and proven facts, the judge granted a declaration that Mr. Fournier had contravened the Plant Breeders’ Rights Act by advertising and selling CDC Verona certified seed in the 2013, 2014, 2015, and 2016 crop years. This formal declaration clarified both the temporal scope of the infringement and the specific variety at issue.

Permanent injunction

Alliance also sought a permanent injunction restraining Mr. Fournier from any further acts infringing its plant breeders’ rights. While the statute expressly contemplates injunctive relief, and the rules of court provide a framework for injunctions, the judge approached the request cautiously, drawing on established principles that injunctions are discretionary and typically granted where damages are inadequate and ongoing or threatened wrongs are likely.
Applying the usual factors for permanent injunctions—including proof of a completed or threatened wrong, likelihood of recurrence, the adequacy of damages, and equitable considerations—the Court declined to grant a permanent injunction. The judge found that there was no contemporary evidence that Mr. Fournier was continuing or planning to continue infringing sales of Verona seed and that the substantial damages award, together with the declaratory relief, provided an adequate and effective remedy. The judgment itself was expected to deter both Mr. Fournier and others from similar conduct.

Assessment of general damages

The most complex part of the judgment concerned quantifying Alliance’s financial loss. The Court noted that section 41 of the Plant Breeders’ Rights Act provides for recovery of “all damages” sustained by reason of infringement and authorizes orders for “recovery of damages” and “compensation of an aggrieved person.” In the absence of directly on-point case law under the Act, Alliance and the Court looked to analogous patent and IP jurisprudence under the Patent Act and other federal statutes, where courts have developed principles for assessing damages or ordering an accounting of profits in situations where exact calculations are difficult.
Recognizing the practical problems in quantifying unrecorded or partly recorded agricultural seed transactions, the Court accepted Alliance’s use of an estimation tool called the “Missing Grain Formula.” This formula sought to determine the volume of Verona seed that must have been sold off-farm, but not reported or licensed, by comparing data from Saskatchewan Crop Insurance Corporation on acres, production, and storage with known or reported sales and seed use:
Missing Grain = D Produced – (D Sold + D Stored + D Seeded)
Here, “D” referred to the relevant seed or grain. Using objective crop insurance data and reasonable assumptions, Alliance’s expert analysis produced yearly estimates of “missing” CDC Verona grain for 2013 through 2016. The final step was to multiply that missing volume by the applicable levy or royalty per bushel that Alliance should have received on legitimate licensed sales.
The resulting calculations yielded the following estimated actual loss:

• 2013: 43,733 bushels of missing grain at $4.50 per bushel, for $196,798.50;
• 2014: 72,537 bushels at $3.75 per bushel, for $272,013.75;
• 2015: 161,319 bushels at $3.30 per bushel, for $532,352.70;
• 2016: 92,530 bushels at $3.30 per bushel, for $305,349.00.
  This produced a total calculated loss of $1,306,513.95. The Court accepted the structure of the Missing Grain Formula and the application of the levies as conceptually sound, emphasizing that Alliance had used the best available objective data under difficult circumstances. The gaps and uncertainties in the evidence were largely attributable to Mr. Fournier’s own conduct—his failure to keep or preserve records, his refusal to obtain data from his accountant or insurers, and his broader non-compliance with discovery obligations.
  Nevertheless, the judge took seriously the inherent variability and uncertainty of farming, which can cause actual yields to diverge from projections due to weather, pests, and other hazards, particularly over multiple years. To balance the need for compensation with the risk of over-estimating the loss, the Court exercised its discretion to apply a 10% reduction to the total calculated losses. This reduced the damages from $1,306,513.95 to $1,175,862.56.

Punitive damages

Alliance also sought aggravated or punitive damages, arguing that they were needed to denounce and deter infringement of plant breeders’ rights. The Court applied the well-known standard that punitive damages are exceptional and reserved for conduct that is high-handed, malicious, or highly reprehensible, going beyond ordinary civil wrongs. In considering proportionality, the judge examined several factors, including the duration of the infringement, the vulnerability of plant breeders to hidden infringements, the defendant’s conduct in the litigation, and any advantage gained by the defendant.
Here, the Court was satisfied that punitive damages were justified. The infringing conduct appeared to have continued over four crop years. Mr. Fournier had been on notice of Alliance’s concerns since at least 2015 yet failed to produce records, obstructed discovery, and was found in contempt before eventually purging that contempt. While care was taken not to punish him twice for the same contempt (which had already attracted specific sanctions and costs), the overall pattern of behaviour, combined with the policy importance of protecting plant breeders’ rights, supported a modest but meaningful punitive award.
The Court therefore ordered punitive damages of $50,000, in addition to the general damages.

Costs and final outcome

On costs, Alliance asked for solicitor-client (full indemnity) costs. The Court declined, noting that such awards are rare and reserved for truly exceptional cases, often involving abuse of process or other serious misconduct beyond what was already addressed by sanctions and damages. Instead, applying Rule 11-1 and considering the complexity and difficulty of the action, the judge awarded costs on Column 3 of the Tariff of Costs, except where separate costs had already been ordered on particular applications earlier in the file. The judgment did not fix a specific dollar amount for tariff costs, leaving this to be quantified under the tariff framework.
In its formal summary of judgment, the Court ordered: (1) a declaration that Mr. Fournier had contravened the Plant Breeders’ Rights Act by advertising and selling CDC Verona certified seed in 2013–2016; (2) general damages of $1,175,862.56; (3) punitive damages of $50,000; and (4) costs on Column 3 of the Tariff of Costs, excepting earlier costs orders. The Court also left open the possibility for Alliance to return on the narrow question of interest if the parties could not agree on its calculation.

Conclusion: parties’ success and total monetary outcome

Overall, the case confirms the strength of plant breeders’ rights protections in Canada and illustrates how courts will respond when a farmer moves beyond farm-saved seed into unlicensed commercial seed sales. Alliance Seed Corporation, as licensee of CDC Verona and plaintiff, succeeded in its infringement claim against Guy Fournier, while no relief was sought or granted against the University of Saskatchewan. The Court found Mr. Fournier personally liable, rejected his attempt to rely on his corporation to avoid responsibility, and held that his default of defence amounted to an implied admission of the pleaded facts.
By applying a structured damages formula based on crop insurance data and levies, adjusted to reflect farming uncertainties, the Court awarded Alliance general damages of $1,175,862.56 and punitive damages of $50,000, for a total damages award of $1,225,862.56, with additional costs on Column 3 of the Tariff of Costs whose exact monetary value was not specified in the judgment.