Ottawa, Ontario, June 12, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
MONSANTO CANADA INC. and
MONSANTO COMPANY
Plaintiffs
and
EDWARD WOUTERS, JOE WOUTERS
and LISA WOUTERS
and NORTHSPRUCE FARMS LTD.
Defendants
REASONS FOR ORDER AND ORDER
[1] This is a motion by Monsanto Canada Inc. and Monsanto Company (referred to collectively as Monsanto) seeking to have the Defence of the Defendant, Edward Wouters, struck out with judgment to be entered against him and against the corporate Defendant, Northspruce Farms Ltd. (Northspruce). Northspruce has not filed a Defence to this action and the time for doing so has now passed. In the alternative, Monsanto seeks an order under Rule 216 seeking summary judgment based on a number of deemed admissions flowing from Mr. Wouters failure to respond to various Requests to Admit sent to him in March of this year pursuant to Rule 256. Monsanto seeks no relief from the other Defendants, Joe Wouters and Lisa Wouters.
[2] No one appeared on this motion on behalf of Mr. Wouters or Northspruce when the matter came before the Court at Toronto on June 4, 2007 and, indeed, counsel for Monsanto indicated that he had been advised that the Defendants and their counsel did not intend to appear.
[3] It is readily apparent from the motion record and from the Court file that Mr. Wouters has been in almost continuous default of his obligations under the Rules, and as stipulated by various orders of this Court dealing with the production of documents and scheduling. In particular, his affidavit of documents was unsworn and incomplete.
[4] Mr. Wouters was served with Monsanto’s motion materials several weeks ago. Those documents clearly stated that Monsanto was seeking a monetary award of damages in the amount of $97,554.30, an injunction to bar the Defendants from further infringement of its Patent, an order for delivery of any infringing products in their possession, prejudgment interest, post judgment interest, and costs of $10,000.
[5] In addition, by virtue of Mr. Wouters’ failure to respond to Monsanto’s Requests to Admit, he is deemed to have admitted all of the facts necessary to establish an infringement of Monsanto’s Patent: see Society of Composers, Authors and Music Publishers of Canada v. Runway 66 Enterprises Ltd., [2000] F.C.J. No. 556 and Monsanto Canada Inc. v. Schmeiser, [2004] 1 S.C.R. 902. One of those deemed admissions was that in 2005 Mr. Wouters had planted 392 acres with Monsanto’s patented seed.
[6] In support of this claim to damages, Monsanto had to rely upon Government sources to estimate the crop yields and prices for the Defendants’ 2005 soybean production. Its calculation of gross revenue also contained a deduction for expenses of $8,638.50 representing the amount of production expenses identified in Mr. Wouters’ unsworn affidavit of documents.
[7] Monsanto says that it has met the required burden of establishing on a prima facie basis the gross revenue received by Mr. Wouters and Northspruce in 2005 from their infringing activities. The authorities state that it is then up to the Defendants to satisfy the court with respect to the costs of production: see Diversified Products Corp. v. Tye-Sil Corp. (1990), 38 F.T.R 251 and Wellcome Foundation Ltd v. Apotex Inc., [2001] 2 F.C. 618 at para. 31. Here the Defendants have offered nothing beyond the minimal records attached to Mr. Wouters’ incomplete affidavit of documents, and neither of them appeared before the Court to contest Monsanto’s claim to liquidated damages. In the absence of any other evidence or explanation from the Defendants, I am prepared to allow Monsanto’s claim to damages in the amount set out in its proposed order along with the other claims to relief, save with respect to costs. I do not think that this is a case which justifies a lump sum award commensurate with the high end of Column V. I would affix costs and disbursements in favour of Monsanto in the amount of $5,000.00.
ORDER
THIS COURT ORDERS that:
1. Edward Wouters’ statement of defence is hereby struck.
2. As among the plaintiffs, Edward Wouters and Northspruce Farms Ltd., Canadian Letters Patent No. 1,313,830 ("the Patent") is valid.
3. In 2005, the Defendants Edward Wouters and Northspruce Farms Ltd. infringed claims 1, 2, 5, 6, 22, 23, 27, 28 and 47 of the Patent by growing, harvesting and selling 392 acres of soybeans which these Defendants knew contained genes and cells as claimed in the said claims of the Patent.
4. Edward Wouters, Northspruce Farms Ltd. and all persons under their control are hereby enjoined until the end of the term of the Patent from:
(a) planting or growing seeds which contain genes or cells as claimed in claims 1, 2, 5, 6, 22, 23, 27, 28 and 47 of the Patent;
(b) cultivating or harvesting any plant grown from the seeds referred to in subparagraph (a) above; and
(c) offering for sale, selling, marketing, distributing by any means any and all quantities of seed referred to in subparagraph (a) above and any and all quantities of plants grown from such seeds.
5. Edward Wouters and Northspruce Farms Ltd. shall deliver up to the plaintiff, Monsanto Canada Inc., within 30 days of this Judgment, all seeds and plants in their possession, custody or control which contain cells or genes as claimed in any of claims 1, 2, 5, 6, 22, 23, 27, 28 and 47 of the Patent.
6. Edward Wouters and Northspruce Farms Ltd. shall pay to the plaintiffs the sum of $97,554.30 on account of the profits made by these Defendants by growing, harvesting and selling 392 acres of soybeans which these Defendants knew contained genes and cells as claimed in the said claims of the Patent ($248.86 per acre).
7. The plaintiffs are entitled to pre-judgment interest from September 2, 2005 to the date of Judgment at the rate of 2.8% in accordance with section 36(1) of the Federal Courts Act, payable by Edward Wouters and Northspruce Farms Ltd.
8. The plaintiffs are entitled to post-judgment interest at the rate of 5% from the date of Judgment to the date of payment, payable by Edward Wouters and Northspruce Farms Ltd.
9. Costs of this action as against Edward Wouters and Northspruce Farms Ltd. are fixed at $5,000.00 payable forthwith.
"R. L. Barnes"
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1514-05
STYLE OF CAUSE: MONSANTO CANADA INC. ET AL.
and
EDWARD WOUTERS ET AL.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 4, 2007
REASONS FOR ORDER
AND ORDER: Justice Barnes
DATED: June 12, 2007
APPEARANCES:
L.E. Trent Horne for the Plaintiffs
No one present for the Defendants
SOLICITORS OF RECORD:
BENNETT JONES for the Plaintiffs
Barristers & Solicitors
Toronto, Ontario
John G. Langlois for the Defendants
Barrister & Solicitor
Toronto, Ontario