Egg whistleblower in court again
Thursday, July 28, 2011
by BETTER FARMING STAFF
Superior Court Justice Roland Haines expects to decide by Friday if he accepts egg industry whistleblower Norman Bourdeau’s contention that he was too sick to meet a Mar 4, 2011, court imposed deadline to deliver documents to his former employer last winter.
Bourdeau, a former employee of L.H. Gray, Ontario’s second-largest egg marketer, offered pneumonia as an excuse in court documents presented in London Ontario Superior Court Wednesday.
The information technology specialist, who has challenged the practices of Ontario’s egg industry and his former employer, L.H. Gray and Son Limited and asked the Ontario Farm Products Marketing Commission to investigate, claims in an affidavit that pneumonia prevented him from providing L.H. Gray with a list of about 170 contacts to whom he had leaked proprietary and confidential information by the early March deadline. The list was finally delivered via email at 1:59 p.m. on March 11.
The company is asking Justice Haines to find Bourdeau in contempt of court for his tardiness. L.H. Gray is suing Bourdeau for breach of fiduciary duty, confidentiality, good faith obligations, defamation and intentional interference in economic relations. The company is claiming $15 million in damages.
Bourdeau, in turn, is suing his former employer for wrongfully terminating his contract and is claiming $25 million in damages.
All claims have yet to be proven in court.
The contempt motion is one of four that L.H. Gray filed against Bourdeau in London and Oshawa courts for not providing documents or failing to provide them on time. Two of the contempt cases are resolved. On Wednesday, lawyers representing both parties confirmed neither resolution found Bourdeau in contempt. However, the decisions acknowledged that he did not comply with the orders and in one case a fine of $500 was imposed plus $1,000 in costs.
On Wednesday, L.H. Gray’s lawyer Allison Webster argued that the contempt motions indicated a pattern of conduct. Here “we have an individual who continually breaches orders on which he has entered on consent,” she said. There was no indication from Bourdeau’s lawyer that he would not be able to comply with the date because of illness. There was no doctor’s note supplied and no apology to the court. The explanation came months later. The inconsistencies “are too great,” she said, to conclude illness prevented Bourdeau from filing.
Webster also argued that the delay prevented the company from contacting those who had received information from Bourdeau and “frankly, do damage control.”
She asked Justice Haines to fine Bourdeau $5,000-$7,500 and order him to pay costs, which she estimated for her firm to be nearly $11,000. Refcio estimated his costs at $2,000-$3,000.
Bourdeau’s lawyer, Rod Refcio called the contempt motions “deliberate” and “intended to intimidate my client” and argued that each case should be considered on its own merits rather than interpreted as a pattern. Refcio argued Bourdeau may have been reluctant to provide an explanation because, given the contentiousness of the proceedings, he did not want to show weakness. The delay was minor: “We’re talking five business days,” Refcio said.
Refcio offered to provide Judge Haines with evidence of Bourdeau’s illness that had come to his attention during a break in the court session. A prescription bottle sat on his desk. Judge Haines noted he would only receive the evidence if Webster agreed; she objected.
Refcio also noted that Bourdeau provided the list as soon as he could after he recovered. It was “not a short list,” he said. Bourdeau “needed to make sure it was accurate.” BF