Egg case headed to Court of Appeal for Ontario

Wednesday, March 26, 2014

by SUSAN MANN

It could be four to five months before an appeal is heard in the Ontario Appeal Court on the case involving Sweda Farms Ltd. after an Ontario Superior Court justice dismissed all of its lawsuits against one of the parties last month.

On Feb. 24, Judge David L. Corbett dismissed all the lawsuits Sweda Farms Ltd. and its related companies had launched against Burnbrae Farms Limited and its related companies Burnbrae Holdings Inc. and Maple Lynn Foods Limited.

Sweda’s lawyer, Don Good, says since Corbett’s ruling was a final order ‘in that he dismissed our case” they don’t have to file for leave to appeal. Instead, the matter goes “directly to the Court of Appeal without leave.”

The lawsuits Sweda launched are against Burnbrae and its related companies, along with L.H. Gray and Son Limited, William Harding Gray, Egg Farmers of Ontario and Harry Pelissero, executive director of Egg Farmers of Ontario, John Klei and the estate of Johannes Klei. Sweda, which used to be Ontario’s third largest egg grader, alleges Burnbrae, Ontario’s largest egg grader, and Gray, the second biggest grader in the province, and the others involved in the lawsuit conspired to undermine its business. The lawsuits began as two separate cases in 2005 and 2008 but were merged into one case in 2011. The allegations have not been proven in court.

The March 21 notice of appeal filed by the Sweda side lists 19 points where they say Corbett made legal errors, including that he didn’t find that there were disputed material facts; that Burnbrae’s motion to dismiss the case before a trial is held was premature “given the lack of full disclosure”; that he misapplied a rule that relieved Burnbrae from having to deliver every document relevant to any matter in issue in an action; that he made a presumption that all evidence that would be available for the trial was placed before him when the Sweda side specifically argued “that a vast amount of evidence had not been disclosed and could therefore not possibly be before the court.”

Corbett also erred in finding the Sweda side had argued that a trial was necessary to obtain the evidence to support its claim “when such argument was never made” and in finding that the Sweda side had not diligently pursued the motion to compel full disclosure when they launched the motion and “pursued it diligently following refusals to produce” evidence, the appeal notice says. BF

- With files from Better Farming staff.