Two lawyers for L.H. Gray and Son Ltd. spent almost a full day in court here June 10 painting whistleblower Norman Bourdeau as a thief and liar who defied a court order to turn over electronic files he took from Gray.
Bourdeau’s lawyer countered that the court order was not detailed and specific enough to qualify as the basis for contempt of court.
Justice Peter Lauwers will be making a decision, likely before the end of the month, on whether Bourdeau is, indeed, in contempt of court and, if so, what penalty he will apply.
Lawyer Allison Webster, who charges Gray $350 an hour, called for two weeks to two months in prison and a fine of $30,000 to $40,000.
The judge made it clear that prison is highly unlikely and that he thinks she's way too high on amount of any fine, presuming he does find Bourdeau guilty of contempt of court.
Bourdeau’s lawyer, Rod Refcio, said neither a prison sentence nor a fine are warranted in this case because Bourdeau has since totally complied with the court order to turn over everything he has from Gray’s files. That happened on June 3.
Refcio argued that the court order did not specify that Bourdeau could not make copies of the materials he turned over to the court long ago, nor that he could not distribute the information. Dave Williams, another of Gray's lawyers who bills at the rate of $515 an hour, quietly laughed and laughed as Refcio presented his defence.
Refcio argued, and Webster agreed, that the court order was not designed to prohibit Bourdeau from using the information in the electronic files, but to ensure the files would be under court protection.
Bourdeau says Bill Gray, owner of the company, ordered him to destroy the files and that’s what prompted him to make and take copies and then try to get them into the hands of somebody who would pursue justice.
Webster argued that Bourdeau clearly knew, or should have known, that what he did by keeping copies and distributing the information in them was defiance of the court order.
Williams said little during the hearing, but set the stage for Webster to take over.
He did reveal that Gray didn't know what Bourdeau was doing until long after he had sent a petition to the Ontario Farm Products Marketing Commission and that he learned about it from Ontario egg board lawyer Geoff Spurr in January.
Williams said Bourdeau “has been to pretty well every regulatory body in Canada that has anything to do with eggs.”
The judge said Bourdeau is entitled to talk to those regulatory bodies. Williams conceded that but said Bourdeau breached the court order by providing them with information from the electronic files.
Gray’s lawyers zeroed in on “a disc with 250 e-mails” and “and egg-grading file,” but conceded that they don’t know whether that is the full extent of information they believe Bourdeau kept.
The information Williams and Webster cited is in court files in London which have been seen, and reported on, by journalists before Webster obtained a court order to seal the files. The e-mails indicate that Gray had his staff adjust egg-grading machinery to incorporate and pass off cracks as Grade A eggs, that he had frequent contact with competitor Burnbrae Farms and with Harry Pelissero, general manager of Egg Farmers of Ontario. Some of that e-mail traffic involved moves to thwart Svante Lind and his Best Choice Eggs.
Williams said Bourdeau’s allegations are that Gray defrauded customers on about 250 million eggs – i.e. cracks or undergrades marketed as Grade As - and said that is having serious economic consequences for Gray.
He referred to an affidavit by Scott Brookshaw, vice-president of operations for Gray, that farmers are threatening to quit supplying eggs to Gray if Bourdeau’s allegations prove true.
I have been told that Brookshaw said 35 producers representing half of Gray’s egg-grading volume have threatened to move their business and when I asked lawyer Donald Good, who represents Lind, if he can confirm that information, he said "to the best of my memory, it's in that ballpark."
Refcio said Bourdeau has felt intimidated by Gray and only wanted to ensure that the information gets into the hands of somebody who will pursue justice.
Refcio said that explains why Bourdeau prepared his petition and began to send it out after Gray’s lawyers hit Bourdeau with a $15-mlllion lawsuit last October.
That lawsuit, alleging Bourdeau defamed Gray and his business, is yet to be settled in court in London. Webster said it was filed after Gray learned that Bourdeau had spoken to an information technology company and to the auditor for the Egg Farmers of Ontario marketing board.
Refcio noted that Gray's lawyers filed motions against Bourdeau in courts in both London and Oshawa and called that "duplication", prompting the judge to challenge Webster and Williams to explain why.
Webster said the contempt motion was filed in Oshawa because that’s where the order to turn over the files was issued and the other motions were filed in London because that was the quickest way to muzzle Bourdeau.
The London cases have been settled “by consent” with a $500 fine to be paid to the court and $1,500 in legal costs to Gray’s lawyers.
The contempt motions are a side show to the main event which is lawsuits Svante Lind of Best Choice Eggs has filed against Gray, Burnbrae Farms Ltd. and the Ontario egg board.
One of the key issues there is whether information from the electronic files Bourdeau took from Gray can be used as evidence in Lind’s case and, if so, how much.
The lawyers are due back in court in Oshawa July 19. The first order of business then will be Good’s motion to combine Lind’s cases against Gray, Burnbrae and the egg board.
One of the lawyers said "this could drag out for five years."
I guess that's why they say justice delayed is justice denied. That, and I might add, the high costs involved, making it an uneven playing ground between them that has and them that don't.
