More mystery and silence in Ontario's long-running egg case
Thursday, May 16, 2013
by BETTER FARMING STAFF
The Ontario Farm Products Marketing Commission has announced it will contract a third party to investigate how Egg Farmers of Ontario conducts its business.
The commission notified the marketing board and lawyer Donald Good about the investigation earlier this month. Good asked the commission to look into the board’s activities nearly a year and a half ago on behalf of his client, Blackstock-based egg grader Sweda Farms. Ltd. Sweda contends the marketing board and other egg industry players undermined its business. The company and its affiliates have taken legal action. All claims have yet to be proven in court.
Scott Graham, Egg Farmers of Ontario chair, says the board has sent notice to its producers of the investigation. He says the investigation won’t involve individual producers. Under investigation are the board’s policy and structure — “just general things.”
He says the board will co-operate fully. “We feel very confident that we’ll be vindicated when they do their investigation.”
Lorne Widmer, who responded to a request for an interview with commission chair Geri Kamenz, says because an investigation is underway, Kamenz won’t comment. Widmer, the commission secretariat’s executive assistant, said he was unable to comment because he is “a little bit removed” from the issue but confirmed a third party investigator would file a report with the commission. Widmer says he doesn’t know who the third party investigator would be.
Graham says there will be no public proceedings attached to the investigation and the third party will have until December to file the report. He adds that the board already supplied much of the information after the commission received a request in 2010 to conduct a public inquiry. “They were quite satisfied with things at that point.”
That request came from Norman Bourdeau, a former employee of L.H. Gray and Son Limited, the province’s largest egg grader. Bourdeau, a London, Ontario information technology specialist and self-described egg industry whistleblower, has been involved in a wrongful dismissal claim against L.H. Gray. L.H. Gray has also taken legal action against Bourdeau for breach of contract and confidentiality, amongst other claims. All claims related to these actions have yet to be proven in court.
In a 2010 report sent to the commission, Bourdeau alleged that his former employer illegally included cracked eggs into Grade A packages sold to retail, institutional and food service sectors and the marketing board had also participated in illegal activities. Representatives of L.H. Gray and the board have vigorously denied the claims.
Bourdeau did not respond to requests for an interview. Good said that he recently received a note from Bourdeau saying that he had withdrawn his request to the commission for a public inquiry. The last motion to be filed in Bourdeau’s and L.H. Gray’s London legal proceedings is adjourned and no other court dates have been set.
Asked if L.H. Gray had reached an agreement with Gray, Allison Webster, L. H. Gray’s lawyer, responds: “I don’t have any comment with respect to Mr. Bourdeau at all.”
Meanwhile, documents at the centre of Sweda’s legal action against many players in Ontario’s egg industry remain sealed, despite a recent ruling that allows public access to some of them.
On May 8, Ontario Superior Court of Justice Master Thomas Hawkins dismissed L.H. Gray’s request to seal all documents related to Sweda’s legal action against egg industry players that include the marketing board and its general manager, Harry Pelissero, as well as Burnbrae Farms Limited and L.H. Gray. A master is a judicial officer who handles procedural matters and case management.
Lawyers for L.H. Gray had argued that information contained in the documents “is highly sensitive to L.H. Gray’s commercial interests,” Hawkins writes in his decision. Hawkins challenged whether the information was confidential.
“Those materials were in the court file open to the public for almost a year” before a sealing order was obtained, he writes. He notes that he has not been given any information “about the egg grading machine which L.H. Gray uses.
“I do not know if any features of that machine have been protected by patents. I do not know if that machine was secretly designed and built by L.H. Gray itself or if it was designed and built by a commercial supplier of equipment used by egg graders. If the latter was the case, information about how to use the egg grading machine would be available to anyone who bought the same model of machine from a dealer. If so, a sealing order respecting such information would be inappropriate unless the information was confidential in fact and the supplier demanded and obtained a confidentiality agreement from every buyer.”
Good says that while the motion is dismissed, a previous sealing order on some of the documents remains in place. Moreover, L.H. Gray has filed a motion to appeal Hawkins’ ruling. An interim sealing order on all documents is in place until the appeal is dealt with.
No date has yet been set for the appeal, Good says. “I can imagine it will certainly be months, not weeks.”
Webster says in the meantime, the interim order will apply to documents filed in connection with upcoming developments in the case. They are L.H. Gray’s motion for a summary judgement to strike certain parts from Sweda’s claim, to be heard later this month, and a motion by Sweda “seeking certain productions from my client.” BF