Tuesday, May 28, 2013

Gray tries to eliminate part of lawsuit


Lawyer Alison Webster spent a Monday in court in Toronto, trying to persuade Justice Carol Brown to dismiss two parts of the lawsuit that Svante Lind and his Best Choice Eggs business have filed against her client, L.H. Gray and Son Ltd.

She argued that there is no evidence that Gray was engaged in a conspiracy with Burnbrae Farms Ltd. (or Burnbrae Holdings Ltd. and Maple Lynn Foods) and the Egg Farmers of Ontario marketing board to drive Best Choice out of the egg-grading business.

She also argued that there is no evidence that Gray misrepresented Grade A eggs.

Lind’s lawsuit alleges that there was a conspiracy and that Gray and Hudson routinely included undergrades in retail-ready packages that should contain only Grade A eggs.

Two reporters were ordered to leave the courtroom for much of the presentations by Webster and by Robert Morrow and Donald Good, representing Lind and Best Choice Eggs.

That’s because Webster used information from an affidavit filed by Scott Brookshaw, general manager for Gray’s egg-grading and egg-farming operations, and that document remains under a court sealing order while Webster appeals a court decision earlier this year to lift the veil of secrecy.

Meanwhile Burnbrae is seeking federal court action to block the release of Canadian Food Inspection Agency reports on audits of its egg grading.

Those documents are sought by a reporter who is using the federal Access to Information process and an appeal to the Information Commissioner of Canada who has made a decision on releasing the documents, a decision that Burnbrae is now challenging in court.

No lawyers for Burnbrae appeared in court Monday, but the law firm sent a law student to monitor proceedings. Geoff Spurr, lawyer for the egg board, was there for part of the hearing.

Webster said in a brief interview at the end of Monday’s court appearance that part of her argument on egg grading relates to an “administrative tolerance” for undergrades in packages of Grade A eggs.

That is a contentious issue, especially if the Canadian Food Inspection Agency does have an “administrative tolerance” and whether it applies at grading stations or only at retail outlets.

Webster has also fought to keep electronic records of Gray’s egg-grading data out of the court proceedings.

Good and Morrow want that data to be allowed as evidence.

Good only said after Monday’s hearing that he and Morrow argued that there are differing opinions about the accuracy of Gray’s egg grading.

In the open session, Webster outlined the long history of this legal battle, beginning with a lawsuit Lind filed against the egg marketing board in 2005, then against Burnbrae and Gray in 2008.

She said whistleblower Norman Bourdeau took a backup of Gray’s complete computer files and used it to brief Lind during several meetings, often in IKEA furniture-store outlets.

She says Bourdeau provided Lind with 300 pages of documents, then later with 800 pages, including many e-mails and egg-grading records which Bourdeau had analyzed by a third party.

Bourdeau, who has accused Gray of fraudulently marketing about five per cent cracked and otherwise undergrade eggs as Grade A eggs, has dropped out of sight after figuring prominently in the court actions for more than three years.

Webster accused Lind of misleading the court into believing he had only three e-mails from Bourdeau when, in fact, he had hundreds of pages of documents and extensive briefings.

Webster also says Bill Gray, owner of the business, did not order Bourdeau to destroy the electronic records, as Bourdeau has claimed, but only to “clean up” his e-mail files.

Webster said Gray is audited by the Canadian Food Inspection Agency and annually by the Guelph Food Technology Centre for food safety and said “it’s inconceivable” that Gray could remain in business if it routinely cheated on egg grading.