Documents remain secret, reporters barred from latest hearing

Friday, May 31, 2013

by BETTER FARMING STAFF

The veil of secrecy surrounding Ontario’s long-running egg case, continued this week, as reporters were barred from a hearing in Toronto Superior Court.

Part of the mystery surrounds a legal dispute between L.H. Gray and Son Limited, Strathroy, Canada’s second largest egg grader and a former employee. That employee, Norman Bourdeau, self-described egg industry whistleblower, has been a key figure in a legal case involving several members of Ontario’s egg industry.

An Ontario Superior Court clerk at the London courthouse confirms legal actions between Gray and Bourdeau, an information technology specialist, were dismissed on April 22.

The case records remain sealed.

Does this mean the whistleblower is permanently muzzled? If so what happens with his allegations of wrongdoing in the egg industry?

Gray was suing Bourdeau for breach of contract and confidentiality, amongst other claims. Bourdeau was countersuing Gray for wrongful dismissal.

Bourdeau, who was barefoot and wearing shorts and a t-shirt when he answered the door on Wednesday morning at his home in south London, Ontario, said he had no comment about the case’s dismissal.

“I can’t really comment, I really can’t,” he said repeatedly when asked if he had reached a settlement with L.H. Gray, why he couldn’t comment, whether he had withdrawn a request to the Ontario Farm Products Marketing Commission for a public inquiry into the province’s egg industry, whether he planned to remain in London for the near future and whether he was working on a new job.  

“I can make zero comments, really,” he said.

The London case had revolved around electronic data that Bourdeau had obtained from his former employer. The data contained information ranging from internal and external company emails and grading information to payroll documents. In 2010, the data became key evidence in legal actions that Ontario’s former third-largest egg grader, Sweda Farms Ltd., and its related businesses had taken against the province’s supply-managed egg marketing board, as well as graders L.H. Gray and Burnbrae Farms Limited, among others.

The data currently remains in the custody of a court-appointed supervising solicitor.

On Monday, L.H. Gray’s lawyer, Allison Webster made reference to the data records while in a Superior Court room on the eighth floor of a Toronto building where she was presenting a motion to Judge Carole Brown in connection with the long-running egg industry case. She was asking the judge to grant a partial summary judgment to remove Sweda’s allegations against L.H. Gray that it had fraudulently manipulated egg grades, deliberately marketed cracked and dirty eggs and conspired with others to do so.

No claims have been proven in court.

In her introductory comments, (made before reporters were barred from the court room) Webster spent some time outlining how information that had been brought to light by Bourdeau had fallen into the hands of Svante Lind, owner of the Blackstock-based Sweda Farms.

She told Judge Brown, that L.H. Gray's annual sales were in the hundreds of millions of dollars and that the company sold its eggs to retailers such as Costco, Metro and Walmart. The company is also a partner in a venture with Tim Hortons.

The company's facility is regularly audited by a third party to maintain its standing, she noted. She pointed out that retailers such as those L.H. Gray deals with expect such verification to take place.

She noted that if the company had been selling cracked and dirty eggs, it would be “inconceivable that L.H. Gray could stay in business” and maintain its level of quality.

Webster noted that a motion had been filed seeking permission to view the data records, which would be heard in December. “We ourselves don't really understand the scope of the documents with the supervising solicitor,” she told the judge. She estimated there were more than one million documents.

Webster alleged that Bourdeau had met with Lind in 2009 at different IKEA stores throughout the province and had given him small flash drives with information. She alleged he also provided Lind with an analysis of L.H. Gray's grading data in 2009 and several pages of copies of the company's emails.

However, despite these meetings, Lind had claimed in a 2010 hearing that he had only received three or four emails from Bourdeau.

“Mr. Bourdeau and Mr. Lind are what I call fast friends,” Webster said.

Webster noted that Bourdeau had been found in contempt of court for not having turned over copies of documents about his former employer to the supervising solicitor, and disseminating them after another judge had told him not to. She observed that other than the data records that remained with the supervising solicitor, Lind’s assertion of Gray being involved in a conspiracy rested on a handful of emails from Bourdeau, a grading analysis that he had provided to Lind and “vague and unsupportive” evidence provided by one of Lind’s employees.

Just before Webster began her presentation, she had asked the judge that media be removed during points when material from court-sealed documents was being discussed.

After she announced she was going to refer to specifics in the sealed documents, the judge ordered the two members of the media in the courtroom to leave. No details were given about when they could return.

The remainder of the daylong session took place behind closed doors.

Donald Good, who is representing Sweda, noted that he had filed a motion to be heard in December to obtain permission to review the data records with the supervising solicitor. The motion also calls for L.H. Gray to disclose some of its records. “Our position is that there is years of this data that is relevant to our proceedings and that it should be disclosed in the normal course of discovery — that’s a normal obligation they have,” he said Thursday. “They (L.H. Gray) say it’s not relevant; that’s something that court will have to decide.”

He acknowledged that what he and his client have so far “is a very, very, tiny amount of what the total data would be.”

Good said the dismissal and sealing of documents in the legal actions between L.H. Gray and Bourdeau “seems very strange to me.” He said he has made queries but has not found out anything. “If somebody has been tampering with my witness I’d be very concerned.”

Good’s co-counsel, Robert Morrow, said on Thursday that the judge had reserved her decision on L.H. Gray’s request for a partial summary judgment. The decision will be made public. He said he didn’t know when it would be released, noting that would depend on the judge’s commitments. “It could be a lengthy wait,” he said.

Morrow, who said his career in law spanned 40 years, noted that he has seen courts take the unusual step of clearing media from the room before. However, he added, there is a distinction to be drawn between a sealing order and a publication ban. “In this case, there is no ban on publication persay,” although there are restrictions on what can be reported from sealed documents. BF