Decision reserved in egg whistleblower's contempt case

Tuesday, June 14, 2011

by BETTER FARMING STAFF

Ontario Superior Court Justice Peter Lauwers reserved judgement Friday after hearing arguments for and against finding self-described whistleblower Norman Bourdeau guilty of contempt in Oshawa.

Bourdeau, an information technology expert, is a key figure in a series of court cases and controversy over egg grading in the province. The contempt motion was brought against Bourdeau by his former employer, Strathroy egg grader L.H. Gray and Son Limited.

It involves a previous court decision and information that Bourdeau had supplied to Sweda Farms of Blackstock, an L.H. Gray competitor. Bourdeau was ordered to hand over documents to L.H. Gray  the supervising solicitor. Bourdeau later distributed copies of 250 emails of correspondence between L. H. Gray and its customers and clients and a file concerning egg grading, to Gray’s customers and to agricultural regulatory bodies across Canada.

Gray’s lawyer, David Williams argued that Bourdeau had exhibited “a history of non-compliance” with court orders. Williams described some of the documents that Bourdeau had distributed as “commercially damaging.”

“My client’s view has always been that its documents and those of its customers and producers shouldn’t be floating around the province unprotected,” Williams said outside the courtroom.

Citing case law, Allison Webster, another lawyer representing Gray, first called for a period of incarceration of between two weeks and two months and a fine of $30,00- $40,000. Later she agreed with Justice Lauwers that a much lower fine would be appropriate. Lauwers said if Bourdeau was in contempt of a court order it would be difficult to prove that he had profited from it.

Rod Refcio, Bourdeau’s lawyer, said his client’s actions “didn’t pass the test” for contempt.  He described Bourdeau’s actions  as “preventative rather than prohibitive.”

Justice Lauwers declined to hear a request from Gray’s lawyers to seal documents in the Oshawa case, as had been done by Justice Wolfram Tamsendfreuend  in London in a case where Gray is suing Bourdeau, its former employee, for breach of confidentiality.

“There is a public interest in what we do,” Lauwers told Gray’s lawyers. “The media are entitled access,” he said. Justice Lauwers said there needs to be a process in place so that someone can seek exception to the sealing order. L. H. Gray lawyer Williams agreed to set up that process. The issue of the sealing order, sought by Gray’s lawyer, and another issue, sought by Sweda Farms lawyer Donald Good, to consolidate the Oshawa lawsuit with another filed in Toronto, will be dealt with in Oshawa on July 19.

Lawyers for Egg Farmers of Ontario, and for Burnbrae Farms, another egg grader, observed the court proceedings on Friday but did not take part.

At the beginning of the proceedings Rod Refcio, Bourdeau’s lawyer said an agreement had been reached with Bourdeau on another contempt of court motion on June 3, in London. Bourdeau had failed to meet a deadline to hand over all L.H. Gray documents to the grader supervising solicitor. Refcio said Bourdeau will pay $500 to the provincial treasurer and $1,500 to L.H. Gray.  BF