Executive Summary: Key Legal and Evidentiary Issues

• DeepRoot's contempt motion against GreenBlue for allegedly breaching a permanent injunction related to patent infringement of structural cell systems (348 and 599 Patents) was dismissed by the Federal Court and upheld on appeal.

• Whether GreenBlue's RootSpace AirForm system — which added a domed "AirForm Insert" to reduce available soil volume below 84.5% — fell outside the scope of the patented claims was the central dispute.

• Conflicting expert evidence on whether the AirForm Insert formed part of the structural cell itself left the Federal Court with reasonable doubt, benefiting GreenBlue under the beyond-a-reasonable-doubt standard.

• DeepRoot failed to lead direct evidence measuring available volume in the AirForm cells, relying instead on cross-examination challenges to GreenBlue's expert, Dr. Drake, whose calculations of 82–83% the Court accepted as reasonable.

• Photographic evidence from construction sites did not establish beyond a reasonable doubt that RootSpace cells were used without the AirForm Insert in breach of the injunction.

• On costs assessment (2026 FCA 29), GreenBlue was awarded $5,378.80 in total costs, with travel expenses for its President disallowed and second counsel fees denied for lack of a court direction.

The patent dispute between DeepRoot and GreenBlue

DeepRoot Green Infrastructure, LLC and its Canadian operating subsidiary, DeepRoot Canada Corp., are competitors of GreenBlue Urban North America Inc. in the urban landscaping industry in Canada. Both companies sell structural cell systems installed beneath hardscape — such as sidewalks and roadways — to enable tree root growth and stormwater management while supporting surface loads. DeepRoot holds two Canadian patents central to this litigation: Canadian Patent No. 2,552,348 (the 348 Patent), which claims a structural cell system for supporting hardscape with at least approximately 85% of the cell volume available to be filled with soil, and Canadian Patent No. 2,829,599 (the 599 Patent), which claims a structural cell with at least approximately 85% void space. The trial judge construed the 85% threshold as a measurement tolerance meaning 84.5% or greater.

The original trial and permanent injunction

Following a three-week trial, the Federal Court found in its 2021 decision (2021 FC 501, the Merits Decision) that GreenBlue's RootSpace system and structural cells infringed various claims of the 348 and 599 Patents. Among other relief, the Court permanently enjoined GreenBlue from infringing the asserted claims. The original RootSpace product was an engineered structural cell soil system with modular components providing high volumes of uncompacted soil for healthy tree root growth below hardscape surfaces.

GreenBlue's design-around: the RootSpace AirForm system

After the Federal Court issued its judgment, GreenBlue began selling the RootSpace AirForm system as a purported "design-around." The AirForm system includes all components of the original infringing RootSpace cells — the same Upright Panels and AirFlow Lids — without any modification. The only difference is the addition of a single new component: the AirForm Insert. This is a domed structure, with the underside of the dome being filled with air, which reduces the space available to be filled with soil. GreenBlue designed the insert using a computer-assisted design program to intentionally reduce the available volume in a cell below 84.5%, specifically to 82%. The company also took the precaution of getting a non-infringement opinion from its counsel before selling the new product. The AirForm Insert is not an optional component — GreenBlue does not sell assembled cells, only the components needed to assemble the cells, including the insert.

The contempt proceedings and expert evidence

Believing the AirForm system violated the terms of the injunction, DeepRoot commenced contempt proceedings. The Federal Court applied the three-part test for civil contempt from Carey v. Laiken, 2015 SCC 17, requiring proof beyond a reasonable doubt that the order was clear and unequivocal, the alleged contemnor had knowledge of the order, and the alleged contemnor intentionally carried out the act the order prohibits. GreenBlue did not suggest the injunction was unclear, nor was it disputed that GreenBlue had knowledge of the injunction; the core issue was whether the sale of the RootSpace AirForm system was an act prohibited by the Court's injunction.

Two key evidentiary questions emerged. First, whether the AirForm Insert formed part of the structural cell itself — and thus whether its volume should be deducted when calculating available space. DeepRoot's expert, Dr. Richard LeBrasseur, an expert in landscape architecture and green infrastructure, described the AirForm Insert as a lightweight product that slides down into the structural cell, is not attached to the base or the uprights, and would fall out if the cell were turned over. He was of the view that the AirForm Insert would not provide any structural assistance in keeping the RootSpace Upright Panels square and rigid during installation and use. GreenBlue's witnesses countered this position. Dean Bowie, the Chief Executive Officer of GreenBlue Urban Limited, United Kingdom, and President of GreenBlue Urban North America, Inc., testified that the grooves on the sides of the AirForm Insert interlock with the uprights, making the AirForm part of the structure of the cells. Michael Hoffman, a professional engineer called by GreenBlue, stated that the AirForm Insert "contributes to lateral and vertical loads in the overall system" and becomes attached when it is loaded with soil because of the interconnection between the insert and the other components of the cell. The Federal Court found the evidence on this point "remain[ed] unclear" and gave GreenBlue the benefit of the doubt.

Second, the parties disputed whether the available volume in the AirForm cells actually exceeded the 84.5% threshold. Dr. Jennifer Drake, an expert in hydrology, stormwater systems, and civil engineering (water resources), testified on behalf of GreenBlue. She was the only witness called by either party to actually try to measure or estimate the volume available for soil in the cells in the RootSpace AirForm system, as DeepRoot led no evidence in this regard. Dr. Drake concluded that the available volume for the AirForm System modules ranged from 82% to 83%, even if the lid was omitted. DeepRoot challenged her methodology in cross-examination, arguing that her reliance on the dimensions of the lid in calculating the bulk volume — rather than the outer edges of the cell unit — resulted in an underestimation of the available volume. DeepRoot submitted that when the alleged errors were corrected, the available volume percentage was actually closer to 86 or 87%. Dr. Drake acknowledged that she had taken a different approach to counsel for DeepRoot in her calculations, but maintained that her underestimate of the available volume was still "closer to the truth" than what she said was counsel's overestimate. Dr. Barrett L. Kays, an expert in landscape architecture, urban stormwater, horticulture, and soil science who testified on behalf of GreenBlue, reviewed Dr. Drake's report, found her measurements and calculations to be reasonable, and concurred with her findings. The Federal Court accepted Dr. Drake's evidence and found that DeepRoot had not proven beyond a reasonable doubt that the volume exceeded 84.5%.

Photographic evidence and the intermediate infringement argument

DeepRoot also adduced photographs of three construction sites — the Minto site in Ottawa, the Eglinton Crosstown site in Toronto, and the Louis Street site in Peterborough — at which RootSpace AirForm systems were being installed. DeepRoot submitted that these photographs showed assembled RootSpace structural cells without the AirForm Insert, constituting direct infringement or inducement of infringement by GreenBlue's customers. The Federal Court found that while some of the pictures depicted structural cells that did not contain AirForm Inserts, the AirForm Inserts were clearly shown in the pictures, and GreenBlue's installation instructions tell installers to use the AirForm Inserts and to install them before filling the structures with soil. Jeremy Bailey, a consultant and former General Manager for GreenBlue, testified that the AirForm Insert is normally inserted after two or three upright panels are joined together, and that a cell module is typically assembled by building out from a corner made with two upright panels, adding the AirForm Insert, and then building out from there. He confirmed that when he left the Minto jobsite, the RootSpace AirForm system had been installed correctly, in accordance with GreenBlue's instructions. There was no evidence suggesting that a representative of GreenBlue was present at either the Eglinton Crosstown site or the Louis Street site.

DeepRoot further argued that GreenBlue infringed at least Claim 1 of the 599 Patent by importing the upright panels and AirFlow lids into Canada from the United Kingdom and then transhipping them to U.S. customers. The Federal Court of Appeal noted this was very much a secondary issue at the contempt hearing, with limited evidence before the Court. The case was distinguished from precedents such as Beloit and Varco because there was no evidence of the assembly of the original RootSpace product by GreenBlue in Canada after the permanent injunction, and there was no evidence that revenue from the sales to American customers accrued to GreenBlue's benefit.

The appeal court's ruling and cost assessment

The Federal Court of Appeal (2023 FCA 185), in reasons delivered on September 13, 2023, by Justice Mactavish, concurred in by Justices Gleason and Woods, dismissed DeepRoot's appeal on all grounds. The Court found no error of law or palpable and overriding error in the Federal Court's factual findings. The Court observed that GreenBlue is not to be faulted for intentionally setting out to "design-around" the 348 and 599 Patents, as whether or not that effort succeeds will depend on the construction of the claims of the patent at issue and not on one's intention. The appeal was dismissed with costs to GreenBlue.

In the subsequent costs assessment decision (2026 FCA 29), delivered on February 12, 2026, Assessment Officer Karine Turgeon assessed GreenBlue's bill of costs under Column III of Tariff B of the Federal Courts Rules. The officer allowed 28 units totalling $4,760 for assessable services, plus HST of $618.80, for a total of $5,378.80 payable by DeepRoot to GreenBlue. GreenBlue's claim for $8,916.09 in travel fees incurred for the attendance of Mr. Dean Bowie at the appeal hearing was disallowed in full, as client or representative travel expenses relating to attendance at a hearing do not meet the reasonableness and necessity criteria under established jurisprudence. The claim for second counsel fees was likewise denied, as the Court did not specify that costs were awarded for a second counsel in attendance at the hearing. The total amount assessed and allowed in favour of GreenBlue as the successful party on the appeal was $5,378.80.