Justice Peter Lauwers has approved the Sweda Farms Ltd. application to join the court cases involving L.H. Gray and Son Ltd., Burnbrae Farms Ltd. and the Egg Farmers of Ontario marketing board.
Lawyers for the three argued strenuously in Durham District Court recently to keep the cases separate. Egg-board lawyer Geoffrey Spurr argued that the evidence of conspiracy among the hinges on one telephone call between Mark Beaven of the egg board with Scott Brookshaw of L.H. Gray and Son Ltd.Sweda has since removed Beaven from its lawsuit, but egg board general manager Harry Pelissero remains a target.
Lauwers said that single mention was based on interviews at a time when Sweda Farms’ lawyers did not know about the close connections among Gray, Burnbrae and the egg board that have been revealed in electronic files that surfaced later and are the focus of ongoing legal battles.
Lauwers further said that had Sweda Farms’ lawyers posed questions of about a conspiracy at that time, lawyers for Gray, Burnbrae and the egg board would have objected and that would have ended that avenue of pursuit.
However, in light of the electronic records, taken by Norman Bourdeau who worked as Gray’s information technology officer, the allegations of a conspiracy have become more substantial.
Lauwers said there was reason, prior to Bourdeau’s allegations of wrongdoing, for Svante Lind of Sweda Farms to believe there was a conspiracy among the three.
He points to Lind’s observation that after the egg board accused him of cheating on grading of eggs to the detriment of farmers’ revenues, Burnbrae contacted the farmers east of Toronto and Gray the farmers west of Toronto who were supplying Sweda Farms and its Best Choice Eggs business.
The egg board based its allegations that Lind cheated on egg grading on the percentage of eggs that were Grade A being a lower percentage than the provincial average. Burnbrae and Gray grade more than 90 per cent of the eggs in Ontario.
Bourdeau alleges that the electronic records indicate that Gray systematically included about five per cent of undergrades as Grade A, undergrades being mainly eggs with some degree of cracks. In other words, the implication is that Sweda Farms was providing accurate grading and it's the others who weren't.
Gray, Burnbrae and the egg board deny they have done anything wrong.
Donald Good, lawyer for Sweda, says he believes Burnbrae was doing what Gray was doing.
Any extra Grade A eggs would work to the advantage of the egg board because its operations are funded by a levy on Grade A eggs.
Lauwers writes in his decision that now joins the cases presents a “problem for the defendants” who are faced with a situation that “changes the landscape entirely.”
The next big issue is determining how much of the treasure trove of electronic files from Gray will be allowed as evidence in the case. Those files are under court protection of a lawyer in Kitchener-Waterloo because Bourdeau told the court that Bill Gray, owner of L.H. Gray and Son Ltd., ordered him to destroy those files when he faced the lawsuit from Sweda Farms.
Bourdeau did delete files while Gray watched over him in the company boardroom, Bourdeau says, but did not realize the information remained on the computer hard drive. Bourdeau made a copy, put it in a safety deposit box, then visited Lind.
The case will now be moved from Oshawa to Toronto. Lauwers said Oshawa doesn’t have enough judges and staff to handle this case because it’s likely to last months if and when it comes to trial and all of the lawyers agreed to the change in location.
