Oshawa – Lawyers for egg-industry giants Burnbrae Farms Ltd. and L.H. Gray and Sons Ltd. spent the day in court here basically trying to keep thousands of electronic records from being allowed into a court case alleging they conspired to hurt a tiny competitor, Sweda Farms Ltd.
Their arguments arose as challenges of a motion by Sweda’s lawyers, Donald Good and Robert Morrow, to merge lawsuits involving them and the Ontario egg marketing board.
Svante Linde, owner of Sweda Farms, argued long ago that the two egg companies and the Harry Pelissero, general manager of the Ontario egg marketing board, conspired to hurt his egg-grading business.
Now his lawyers have filed a new motion to combine separate cases – a lawsuit filed in 2005 against the egg board and a lawsuit filed in 2008 against Burnbrae and Gray – and have added allegations including breach of Canada’s competition laws, basically because they learned a lot more from the electronic files Bourdeau took from Gray’s computer.
Justice Peter Lauwers opened the hearing here by saying “it’s tough to resist” the motion filed by Good and Morrow.
However, as the day progressed, he also conceded that there are several gritty issues of law raised by three lawyers for the defendants that he needs to ponder in reaching a decision.
One of the arguments made by David McCutcheon, lawyer for Burnbrae, and Allison Webster, lawyer for Gray, is that there was not enough evidence of a conspiracy when the original lawsuits were filed in 2005 and 2008, and it’s too late to drag the electronic files Bourdeau took from Gray into the case now.
Morrow countered that there was evidence of a conspiracy, including an attempt by Gray and Burnbrae to jointly buy out Linde, to hire one of Linde’s employees so they could use his knowledge to lure away Linde’s clients and that they tried to get the egg board to help them thwart Linde’s efforts to import eggs.
He said the Bourdeau files add detail and scope to these original complaints of a conspiracy.
At one point, Webster argued that the Bourdeau files are “an entirely different set of facts,” to which Lauwers said “frankly, that’s not how I see it.”
Lauwers said the landscape changed after Bourdeau provided files to Svante Lind, owner of Sweda Farms. There was one set of information available to Good and Morrow and Sweda Farms early on, and another “landscape” after Bourdeau revealed the electronic files.
The new landscape is a much broader and more detailed set of allegations of conspiracies among Burnbrae, Gray and the egg board.
“They (Linde, Good and Morrow) didn’t glom on to the fact there was a bigger conspiracy until later,” Lauwers said, meaning until Bourdeau provided the electronic files.
Lauwers said at the end of the day that he will do his best to provide a prompt decision.
There was agreement among the lawyers that the trial, if it happens, ought to be handled in Toronto.
Lauwers said Oshawa lacks the time and staff to handle a trial that’s likely to “go on and on and on” for months.
Another key issue remains to be resolved before a trial can begin – whether the Bourdeau files can be used as evidence in the case and, if so, how many of the files. The lawyers’ negotiations on that issue hinge in part on what Lauwers decides about whether the lawsuits will be merged or remain separate.
