Agricultural Growth Act (S.C. 2015, c. 2)
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Assented to 2015-02-25
Agricultural Growth Act
S.C. 2015, c. 2
Assented to 2015-02-25
An Act to amend certain Acts relating to agriculture and agri-food
SUMMARY
This enactment amends several Acts in order to implement various measures relating to agriculture.
It amends the Plant Breeders’ Rights Act to amend certain aspects of the plant breeders’ rights granted under that Act, including the duration and scope of those rights and conditions for the protection of those rights. It also provides for exceptions to the application of those rights.
It amends the Feeds Act, the Fertilizers Act, the Seeds Act, the Health of Animals Act and the Plant Protection Act to, among other things,
(a) authorize inspectors to order that certain unlawful imports be removed from Canada or destroyed;
(b) authorize the Minister of Agriculture and Agri-Food to take into account information available from a review conducted by the government of a foreign state when he or she considers certain applications;
(c) authorize the Minister of Agriculture and Agri-Food to issue certificates setting out any information that he or she considers necessary to facilitate certain exports; and
(d) require that a registration or a licence be obtained for conducting certain activities in respect of certain feeds, fertilizers or supplements that have been imported for sale or that are to be exported or to be sent or conveyed from one province to another.
It also amends the Agriculture and Agri-Food Administrative Monetary Penalties Act to, among other things, increase the maximum limits of penalties that may be imposed for certain violations.
It amends the Agricultural Marketing Programs Act to modernize the requirements of the advance payments program, improve its accessibility and enhance its administration and delivery.
Finally, it amends the Farm Debt Mediation Act to clarify the farm debt mediation process and to facilitate the participation of the Minister of Agriculture and Agri-Food in the mediation process when that Minister is a guarantor of a farmer’s debt.
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE
Marginal note:Short title
1. This Act may be cited as the Agricultural Growth Act.
1990, c. 20PLANT BREEDERS’ RIGHTS ACT
2. (1) The definition “protective direction” in subsection 2(1) of the Plant Breeders’ Rights Act is repealed.
(2) The definitions “agreement country”, “breeder”, “category”, “country of the Union”, “infringement”, “new variety”, “plant breeder’s rights” and “plant variety” in subsection 2(1) of the Act are replaced by the following:
“agreement country”
« pays signataire »
“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;
“breeder”
« obtenteur »
“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;
“category”
« catégorie »
“category” means, in relation to a plant, a species, a grouping of species or any class within a species;
“country of the Union”
« État de l’Union »
“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;
“infringement”
« violation »
“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;
“new variety”
« obtention végétale »
“new variety” means a plant variety that is described in subsection 4(3);
“plant breeder’s rights”
« certificat d’obtention »
“plant breeder’s rights”, in relation to a plant variety, means the rights that are granted under section 27;
“plant variety”
« variété végétale »
“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;
(3) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
“document”
« document »
“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;
“filing date”
« date de dépôt »
“filing date” means, in respect of an application, the date specified in the notice given under subsection 10(2);
“person”
« personne »
“person” has the same meaning as in section 2 of the Criminal Code;
(4) Subsection 2(2) of the Act is repealed.
3. Section 4 of the Act and the heading before it are replaced by the following:
CONDITIONS FOR PROTECTION
Marginal note: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).
Marginal note: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.
Marginal note: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.
Marginal note: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).
4. The heading before section 5 of the French version of the Act is replaced by the following:
DROITS PROTÉGÉS
5. Sections 5 and 6 of the Act are replaced by the following:
Marginal note: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).
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
6. Sections 7 and 8 of the Act are replaced by the following:
Marginal note: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.
Marginal note: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.
7. Sections 9 to 11 of the Act are replaced by the following:
Marginal note: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.
Marginal note: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.
Marginal note: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).
Marginal note:Notice of filing date
(2) The Commissioner shall send to the applicant a notice specifying the filing date.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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).
Marginal note: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).
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