Toronto – Court records here indicate that whistleblower
Norman Bourdeau has filed a response to the motion made by lawyers for L.H.
Gray & Son Ltd. to seal all of the court documents related to the Sweda
Farms lawsuit against Gray, Burnbrae and the Ontario egg marketing board.
Bourdeau says that sealing the documents would hamper an
inquiry he and lawyer Donald Good are seeking from the Ontario Farm Products
Marketing Commission.
Bourdeau wants to file documents that indicate cheating on
egg grading. That cheating has a direct bearing on revenues collected by the
Egg Farmers of Ontario marketing board which is under the direct supervision of
the commission.
But Bourdeau points out in his court document that the
commission advised him in a Nov. 21 letter that anything filed with it could be
released under a Freedom-of-Information request.
That would mean that no documents under a court sealing
order could be submitted to the commission.
Bourdeau says the net effect “will suppress important
evidence supporting allegations raised with the Commission for investigating
the conduct of Egg Farmers of Ontario.”
Gray’s lawyers have already obtained a sealing order on
court documents filed before the summer, but that order does not extend to
documents filed since then, including a new motion from Sweda Farms
(represented by Good) to consolidate its separate lawsuits against Gray,
Burnbrae and the egg board into a single lawsuit accusing them of conspiracy to
drive Sweda out of the egg-grading business.
Bourdeau’s court motion reveals that the Ontario Farm
Products Marketing Commission is considering the requests for an inquiry, but
set a deadline of Nov. 30 for them to submit documents to back their allegations.
Bourdeau filed his original request for a commission inquiry
on Dec. 22, 2010, and Good, acting on behalf of Verified Eggs Canada, filed later.
Bourdeau notes in the court filing that the egg board relies
on grading reports from egg-grading stations to collect levies and says “there
is evidence to support the allegation that at least five to seven per cent
under-grade eggs (including Grade C and dirts) are intentionally graded into
the Canada Grade A.”
The egg board charges no levy on eggs that are not Canada
Grade A. Based on annual levies of more than $70 million and five per cent
undergrades paying levies, Bourdeau estimates the egg board is collecting an
extra $1.8 million a year.
Egg farmers also benefit by receiving a higher price for the
undergrades that are passed as Canada Grade A eggs.
Bourdeau also cites Canadian Food Inspection Agency
egg-detention orders to bolster his allegation that the data the egg-grading
stations provide the marketing board are flawed.
Bourdeau says the automated grading machines at L.H. Gray
and Son Ltd. are “intentionally set to allow 6.6 per cent under-grades (four
eggs in 60) into all graded product before QC (quality control) can consider
re-grading or fail a small portion of the lot.)
Bourdeau was head of information technology for Gray and has
electronic records to substantiate his claim.
Bourdeau says the egg marketing board accepts a “tolerance”
based on the Canadian Food Inspection Agency, but Bourdeau says the CFIA tolerances
are only for “when eggs are inspected at a place other than where they were
graded or packed”.
Bourdeau says “there is (sic) NO tolerances at the candling
table of the Grading Machine when the carton is closed and labeled Canada Grade
A”.
Bourdeau cites egg board documents to indicate it has the
authority to “search egg grading stations for evidence of violations of the
rules or “inspection of egg grading facilities”. If EFO (Egg Farmers of
Ontario) has this authority, it should be exercised.”
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| Harry Pelissero |
The egg board used to inspect egg-grading stations when
Brian Ellsworth was the general manager. That ended when Harry Pelissero took
over.
Bourdeau also says Gray chooses producers each week to
participate under the egg board’s “nest run” program and says “these eggs are
almost always of poor quality and in violation of the Nest Run Grade
Regulations.”
He said the incidence of cracks and dirts can run as high as
25 to 30 per cent and also accuses Gray of “padding” the nest-run eggs with
eggs that its retail customers return or eggs that are culled out during
grading of “table-market” eggs. The board pays full price for nest-run eggs out
of the national “Industrial Product Fund”.
Farmers’ levies are used to generate that fund which is
supposed to underwrite losses on removing surplus eggs from the Canadian market
and diverting them to egg-processing plants.
Gray and Burnbrae also own egg-processing plants in addition
to their control over about 90 per cent of Ontario’s egg grading and ownership
of the largest egg-farming businesses.
Bourdeau also outlines why the marketing of cracks as Canada
Grade A eggs poses a threat to consumer health and notes that there is a
specific federal regulation banning the retail sale of Grade C (i.e. cracked)
eggs.
Another federal regulation says “no person shall pack, mark
or label eggs in a manner intended to deceive a purchaser into believing that the
eggs have been graded under the Federal Regulation”.
Gray, Burnbrae and the egg board have, in their court
filings, denied any and all allegations of wrongdoing.
The allegations and denials have yet to be tested in court.
