Plant Breeders’ Rights Act (S.C. 1990, c. 20)

Marginal note: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

Marginal note: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  • (c) and (d) [Repealed, 2015, c. 2, s. 47]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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

Advisory Committee

Marginal note:Constitution

• 73 (1) The Minister shall constitute an advisory committee on any terms and conditions determined by the Minister.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Seeds Act

Marginal note: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.

• Marginal note: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

Marginal note: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.

• Marginal note: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.