Lawyer Alison Webster has failed in her bid to persuade the
court to throw out some of the charges that Sweda Farms has filed against her
client, L.H. Gray and Son Ltd.
Justice Carol J. Brown in fact wrote that the motion by
Webster is “doubtful practice.”
She said it’s premature to make any decisions such as this
while Webster continues to hide evidence Sweda has been seeking for at least a
couple of years.
Webster and L.H. Gray & Sons Ltd. have failed to produce
electronic records, including information about egg grading and e-mails between
Bill Gray and his staff, with competitor Burnbrae Farms Ltd. and with Harry
Pelissero, general manager of Egg Farmers of Ontario.
A copy of the electronic data was made and taken by
whistleblower Norman Bourdeau and has been under court protection for several
years, awaiting either an agreement between the lawyers for Sweda and Gray or a
court order to determine what can be included as evidence in the lawsuit which claims
$33 million in damages from the three – Gray, Burnbrae and the egg board, and
another $16 million from them and some of their employees, from the estate of
Joseph Klei, who left employment at Sweda, and Maple Leaf Foods.
There is another court date in December to deal with the
electronic files under court protection.
Gray, Burnbrae and the egg board are supposed to file any
documents with the court that pertain to the allegations made by Sweda.
Those allegations, which the defendants deny, are that they:
- - conspired to drive Sweda out of the egg-grading
- - they shipped eggs to Sweda that fell far short
of grading standards;
- - Gray and Burnbrae routinely markets eggs that
fail to meet Grade A standards;
- Gray and Burnbrae conspired to fix prices and
-the three – Burnbrae, Gray and the egg board -
conspired to keep Sweda from importing eggs to meet demand and knowingly
provided substandard eggs.
Most of the court hearing in
Toronto was closed to the public and reporters because Webster said the
information to be discussed would harm her client’s reputation.
There was apparently a lot of
talk about the settings on automatic egg-grading equipment, but Brown said
neither Webster nor lawyers Donald Good and Robert Morrow, acting for Sweda,
filed any evidence or facts to back their opinions.
Webster referred to an affidavit
from Scott Brookshaw of Gray. He argued that the automatic egg-grading
machinery was set to comply with industry standards.
Morrow argued the settings Gray used allow
cracks into Grade A cartons and said the Canadian law does not provide for any
Webster has argued that the Canadian Food Inspection Agency has a
tolerance, an argument that seems to be accurate because the reports of CFIA
random-sample checks on Burnbrae and Gray grading indicate a tolerance of 1.77
Those reports, obtained via
Access to Information, indicate that there were times when both companies had
more than 11 per cent of the eggs in Grade A cartons that failed to meet the
Most of the random-sample test
results showed two per cent or more cracks in the cartons.
Cracks are not only fraud on
consumers, but also a health risk because eggs are washed to remove dirt and
feces and as cracked eggs pass through that washwater, harmful bacteria could
enter the cracked eggs.