Lawyers Sandra Barton and Mark Coombes of Gowling WLG (Canada) LLP, Toronto, have filed an application on the case to the Ontario Court of Appeal.
They argue that deputy crown attorneys who stayed the perjury charge made errors.
In particular, they say deputy crown attorney John Scutt ignored the nub of the perjury complaint and made his decision based on red herrings – i.e. the merits of a lawsuit that Sweda Farms Ltd. filed against Burnbrae.
The perjury charge was laid by Stuart Jackson, a former Sweda employee, in January, 2015.
He said then, and insists now, that McFall committed perjuty – i.e. lied under oath – when she claimed that Burnbrae did not breach a confidentiality agreement signed with Sweda by sharing information with L.H. Gray and Son Ltd.
Burnbrae was negotiating to buy Sweda and so obtained confidential financial records.
Gray is another major egg-grading business and Gray and Burnbrae combined account for about 90 per cent of graded eggs marketed in Ontario.
Jackson said it’s obvious Burnbrae did share confidential information with Gray, and among other evidence, cites e-mails between McFall and Gray.
McFall is a daughter of the founder of Burnbrae, Joe Hudson, was the company’s internal lawyer, then its external lawyer, then a director on the Egg Farmers of Ontario Marketing Board and a councillor for the municipality of Brockville.
The appeal document argues that it’s important that such a prominent person not be allowed to get away with perjury.