Alison Webster, lawyer for L.H. Gray and Son Ltd., has lost
her second bid to get the courts to dismiss a lawsuit filed by Sweda Farms Ltd.
and its owner, Svante Lind and his Best Choice Eggs egg-grading business.
Webster lost when Justice Carol J. Brown of the Superior
Court of Ontario ruled a year ago that there’s a lot of information contained
in sealed electronic records from the Gray egg-grading business and a lot of
expert witnesses’ testimony to be considered, so it would be premature to
dismiss the lawsuit.
Lind is suing Gray, Burnbrae Farms Ltd. and the Egg Farmers of Ontario marketing board, alleging they conspired to drive him out of the egg-grading business. He has since sold his egg-grading operation.
Webster appealed and after she appealed, Burnbrae Farms Ltd. was
successful in presuading Justice D.L. Corbett to dismiss the lawsuit against it.
Webster argued that because the two egg-grading companies,
which together account for about 90 per cent of the eggs marketed in Ontario,
were jointly sued, along with the egg marketing board, the
charges against Gray should also be dismissed.
Justice Frances Kiteley disagreed, saying that Justice Brown
had good reason for ruling that dismissal is premature.
She also noted that Burnbrae’s motion for dismissal differs
because Justice Corbett ruled that the electronic files apply to Gray, not
Burnbrae. The two cases are different, she wrote.
Corbett said Burnbrae might have broken the
Competition Act and might have a poor reputation, but those things do not have
a direct bearing on the lawsuit.
Corbett’s decision is under appeal.
All of this leaves the lawsuit with a significant issue yet
to be decided – how much, if any, information from the electronic files will be
admitted as evidence in the lawsuit.
The files are a copy of the electronic records of L.H. Gray and Son Ltd., taken by former information technology staffer Norman Bourdeau after he alleges that Bill Gray, president of the company, ordered him to destroy the records in the wake of the filing of the lawsuit.
Bourdeau made a copy of the files and made some of the information available to Lind and also circulated some information to egg producers, to police and to the Ontario Farm Products Marketing Commission. He asked for the commission to launch a public inquiry.
Webster countered and obtained a court order sealing all of the information in the lawsuits. The electronic files are in court custody with a lawyer in Kitchener.
On behalf of Gray, she has consistently denied all allegations of wrongdoing.
Bourdeau had lawsuits for wrongful dismissal and was involved in defending himself against lawsuits Webster filed on behalf of Gray. All of those have somewhat mysteriously disappeared. Neither Webster nor Bourdeau will say why, but Bourdeau has also withdrawn his request for a public inquiry.
Instead of a public inquiry, also demanded by Lind's lawyers, the commission appointed an individual to examine governance at the egg board. He has handed in an interim report, but has asked for more time to continue investigating.
He might be behind recent revelations that the commission used the Access-to-Information process to obtain the results of a nation-wide survey of egg grading during 2010 and 2011. The survey indicates that some retail-ready egg packaging contained more than 10 per cent cracked eggs, that more than 10 per cent had between five and 10 per cent cracks and only two had no cracks. Some also had dirty eggs.
From what has become public so far, it’s clear that Sweda
believes that both Burnbrae and Gray cheated on egg grading and that they conspired
with each other and the egg board to drive Best Choice out of the egg-grading
business.
