Wednesday, February 26, 2014

Judge tosses case vs. Burnbra

Justice D.L.Corbett has tossed the egg-industry conspiracy charges against Burnbrae Farms Limited, Burnbrae Holdings Inc. and Maple Lynn Farms Ltd.

Corbett says Sweda Farms Ltd. has been unable to prove the list of allegations it has made in court documents that accuse Burnbrae, L.H. Gray and Sons Ltd. and the Egg Farmers of Ontario marketing board of conspiring to drive Sweda out of the Ontario egg-grading business.

But Corbett says if the allegations against Gray can be proven, it will be judged guilty.

Gray’s lawyers lost in an earlier bid to get many of the allegations against it tossed out of the lawsuit.

Corbett says that evidence and testimony provided by whistleblower Norman Bourdeau, a former employee at Gray’s Strathroy head office, is limited to Gray’s performance and that Bourdeau provided no direct evidence of similar wrongdoing at Burnbrae.

Corbett deals with the allegations in detail in his 49-page decision. He also ruled that Sweda must pay Burnbrae’s legal costs.

Stuart Jackson, a former Burnbrae employee who went to work for Sweda, testified by way of affidavit that a man in charge adjusted an egg-grading machine to allow cracks into Grade A cartons.

Corbett said that even if that’s true, it does not prove that Burnbrae conspired with Gray and the egg board against Sweda.

Sweda alleged that Burnbrae knowingly provided shoddy eggs to keep Sweda from obtaining a supplementary import permit to meet customer demand.

Corbett noted that Joe Hudson, the owner of Burnbrae, testified that the eggs were graded under Canadian Food Inspection Agency inspection and the truck to deliver them to Sweda was sealed.

Hudson suggested that Svante Lind of Sweda may have tampered with the shipment after arrival and before another CFIA inspector condemned the shipment.

Corbett said he can’t judge whether Lind or Hudson is right and said in any case, this is not proof of conspiracy with Gray and the egg board.

He said there is no evidence that Burnbrae sicked the egg board on Sweda to investigate whether Sweda was short-changing producers by grading their eggs too harshly. The egg board charged Sweda with failing to accurately grade eggs, leaving producers short of money and the egg board short of levies to support its operations.

Sweda has counter-charged that it was Gray and Burnbrae who were putting cracked and dirty eggs into Grade A cartons, inflating provincial averages and making Sweda’s accurate grading look like cheating.

Corbett said Sweda failed to provide any evidence or documentation to prove that Burnbrae has cheated on egg grading. He referred to witness examination in which Hudson said he understands that the CFIA has a tolerance of five to seven per cent for undergrades, such as cracks, in Grade A cartons.

Sweda’s lawyers said the regulations contain no provisions for tolerances. Corbett simply decided he can’t decide on that issue.

Corbett said e-mails between Ian McFall, husband of Hudson’s daughter and a senior executive at Burnbrae, and Gray, discussing a deal to swap a Quebec client and noting this type of discussion is illegal, are not pertinent to Sweda’s conspiracy charges. Both Ian and Mary Jane McFall are lawyers.

Corbett said Sweda has been unable to prove that Burnbrae took a single egg-farming supplier or customer from Sweda.

Corbett said Sweda needed to “put its best foot forward” to stave off Burnbrae’s motion to have it taken out of the conspiracy case and said “It has not.”

In another place, Corbett writes that Sweda needed to “play trumps”, but instead tried to “finesse” the case and “the finesse failed.”

He wrote that many of the allegations try to paint Burnbrae as a company that cheats, but said that's a failed attempt to make the conspiracy charge stick by "inference" and lacks direct proof.