Recent developments in egg industry case

Tuesday, June 3, 2014

by SUSAN MANN

Egg company L.H. Gray & Son Limited has been unsuccessful in trying for a second time to quash a lawsuit launched by Sweda Farms Ltd. and its related companies.

Ontario Superior Court Judge Frances Kiteley says in a May 16 endorsement that she doesn’t accept that the decision by Judge David L. Corbett, who dismissed Sweda’s lawsuit against Burnbrae Farms Limited and its related companies, Burnbrae Holdings Inc. and Maple Lynn Foods Limited in a Feb. 24 decision, is in conflict with the decision by Judge Carole J. Brown, released July 22, 2013, to dismiss a motion to have the lawsuit against L.H. Gray & Son Limited turfed out. The latest appeal by L.H. Gray was heard on April 2.

Don Good, Sweda’s lawyer, says “the leave to appeal (by L.H. Gray) was denied therefore they are in the action.”

Sweda and its related companies, Best Choice Eggs Ltd. and Tilia Tansport Inc. is appealing the decision to dismiss the lawsuit against Burnbrae and its related companies.

In addition to the two egg grading companies, Burnbrae and L.H. Gray, the other people and organizations Sweda has named in the lawsuit include Egg Farmers of Ontario, Harry Pelissero, who is the organization’s general manager, William Harding Gray of L.H. Gray & Son, John Klei and the estate of Johannes Klei.

Sweda, which used to be Ontario’s third largest egg grader, alleges Burnbrae, Ontario’s largest grader, and L.H. Gray, the second largest grader, and others involved in the lawsuit conspired to undermine its business. The lawsuit began as two separate cases in 2005 and 2008 but was merged into one case in 2011. The allegations have not been proven in court.

Kiteley says in her written endorsement Brown dismissed L.H. Gray’s 2013 motion “because it was premature and because the defendants had failed to establish that there were no genuine issues requiring a trial.”

But the Burnbrae defendants were in a different situation than the L.H. Gray defendants in that the evidence and documents Norman Bourdeau, a former L.H. Gray employee and who referred to himself as a whistleblower, brought to the action did not relate to the Burnbrae defendants. The one million documents, in the possession of a supervising solicitor, “were allegedly related to the L.H. Gray defendants so the significant disclosure issues identified by the motions judge (Brown) had no impact on the Burnbrae decision,” Kiteley says.

Allison Webster, lawyer for L.H. Gray & Son, says they also appealed to Kiteley the Ontario Superior of Justice case management master Thomas Hawkins’ decision of May 8, 2013 dismissing their request to seal the public court file in Toronto. That May 8, 2013 decision and L.H. Gray’ subsequent appeal of it dealt with just the public court file in Toronto. “It had nothing to do with the supervising solicitor’s documents and the documents that are still with the supervising solicitor pending a motion or agreement between our office and Mr. Good’s office about how we deal with those documents in the course of the lawsuit,” she says.

Webster says there isn’t a written endorsement from Kiteley about the public court file in Toronto but the judge said “on Monday (May 26) she expects that she will make a decision that the appeal will be dismissed but that relates to the Toronto court file and not the supervising solicitor’s documents. The two are completely separate.”

Webster adds that there hasn’t to date been a process that her office and Good’s office have agreed on “as to how those documents (the ones filed with the supervising solicitor) will be reviewed and then form part of the discovery process and the litigation.” BF

With files from Better Farming staff.