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.
