TORONTO – Lawyers for L.H. Gray and Son Limited are refusing
to hand over egg-grading records for the lawsuit filed by Svante Lind and his
Best Choice Eggs business at Blackstock.
Lind’s lawyer has filed a motion in Superior Court here
requesting the documents or else disciplinary action against Gray. The deadline
is Oct. 25.
Lawyers for Lind, Gray, Burnbrae Farm and the Egg Farmers of
Ontario marketing board met for a mediation conference in June, but Gray and
Burnbrae failed to provide egg-grading data since 2002.
Lind’s lawyer, Donald Good of Ottawa, then filed his motion
on July 10.
There are letters in the court files here, first one on June
19 from Good to Gray’s lawyer, Allison Webster, and to Burnbrae’s lawyer, David
McCutcheon, seeking the grading documents.
Webster answered on June 21 that she would not turn over the
grading records.
She wrote that “given the issues of relevancy and our
serious concerns about confidentiality throughout this litigation, we cannot
agree to produce this sensitive information to your clients and as such, I
anticipate that a motion will be required to deal with the issue, as well as
the documentation that continues to reside with the Supervisory Solicitor.”
Good filed the motion July 10.
The Supervisory Soliciitor reference is to electronic files
taken by Norman Bourdeau, who was Gray’s information technology officer until
Gray fired him. Because Bill Gray, president of the company, had ordered
Bourdeau to destroy the files, the court put Bourdeau’s copies under the
protection of a lawyer in Kitchener.
Webster has been trying to keep those files out of the court
action, which is a lawsuit that Lind originally filed July 23, 2008, claiming
Gray and Burnbrae and the egg board were trying to run him out of the
egg-grading business.
That claim was later amended to bring all three under one
lawsuit alleging the three conspired to drive Lind out of business. He sold
Best Choice Eggs earlier this year.
Good said in his letter to Webster, and again in the motion
he filed July 10, that “the grading data generated by the defendant (Gray) is
critical to this litigation. The plaintiff (Lind) have (sic) requested this
data and it was refused.”
Webster raised two more points in her June 21 letter of refusal
to Good.
“Secondly you should be aware that given your client’s
demands for damages, it will be necessary for our forensic experts to have
access to your clients’ complete financial records over an extensive period of
time.
She adds that “we will prepare a list of what we will
require . . .”
Then she said Bourdeau was in Oshawa on June 15 when the
mediation meeting took place, and she seeks assurances from Good that nothing
that was discussed in that meeting was shared with Bourdeau.
“Given the very strict confidentiality agreement in place
for the mediation procedure, you will understand how that information would
cause concern for our client,” Webster wrote.
She asked for “confirmation that Mr. Bourdeau was not
provided any information regarding the mediation by either yourself, Mr. Lind
or anyone associated with your clients.”
The court documents also outline the defence that Gray has
filed in response to the allegations.
Basically it is a blanket denial that Gray has done anything
wrong.
As for cheating on grading by manipulating the settings on
the automatic grading machines, the answer is that they were set according to
“normal industry practice.”
What constitutes “normal industry practice” in Ontario is,
however, at the heart of this case. Gray and Burnbrae together account for more
than 90 per cent of the egg-grading business in the province and both have
nation-wide operations.
There are documents in the court file about the machinery
and the settings for detecting cracks and dirt.
Part of the grading data Good has requested is the settings
Gray has used at its operations in Strathroy and Listowel since 2002 and, again
in a separate mention, since 2010.
Good is also seeking all Canadian Food Inspection Agency
records about issues that have arisen at Gray’s grading facilities. That
includes records on grading, eggs that have been detained, etc.
Lind was frustrated when he applied to the federal
government to import eggs that he could not buy in Ontario, and, as is normal
practice, the government asked the egg marketing boards if they could fill the
order.
Gray and Burnbrae filled the orders, but so many were
cracked, broken or dirty that the shipments were condemned when Lind called in
inspectors from the Canadian Food Inspection Agency.
One of many questions is how those
eggs managed to get through grading and CFIA inspection at Burnbrae and Gray
facilities before being shipped to Lind’s plant at Blackstock.
