Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200

COURT FILE NO.: CV-08-357570-0000

DATE: 20140224

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: SWEDA FARMS LTD., BEST CHOICE EGGS LTD. and TILIA TRANSPORT INC., Plaintiffs

AND:

EGG FARMERS OF ONTARIO, HARRY PELISSERO, BURNBRAE FARMS LIMITED, BURNBRAE HOLDINGS INC., MAPLE LYNN FOODS LIMITED, L.H. GRAY & SON LIMITED, WILLIAM HARDING GRAY, JOHN KLEI and THE ESTATE OF JOHANNES KLEI, Defendants

BEFORE: D.L. Corbett J.

COUNSEL: Robert C. Morrow and Donald R. Good, for the Plaintiffs

P. David McCutcheon, Chloe A. Snider and Thomas Wilson (student-at-law), for the Burnbrae Defendants

Emily Assini, for the L.H. Gray Defendants

Geoffrey P. Spurr, for the Defendants Egg Farmers of Ontario and Harry Pelissero

Laurie L. Aitchison, for the Defendants Estate of Johannes Klei and John Klei

HEARD: October 9, 2013

JUDGMENT

[1] This is a motion for summary judgment brought by Burnbrae.[^1]

Background

(a) The Parties

[2] Sweda[^2] produced, graded and marketed eggs in Ontario.[^3] Burnbrae and L.H. Gray[^4] are competitors of each other and were competitors of Sweda. EFO[^5] is an industry-run association that regulates production and pricing of eggs in Ontario. Johannes and John Klei were employees of Sweda.

(b) The Ontario Egg Industry

[3] Ontario egg production is regulated by a “supply management” system under which there are quotas on the number of producers and their egg production.

[4] Ontario egg producers sell their eggs to egg graders at prices set by EFO. Graders then grade and sell the eggs to customers or other egg graders for resale.

[5] Sometimes egg graders have surplus eggs. Sometimes they have a shortfall. When a grader does not have enough eggs, it buys more through EFO, which locates them first in Ontario and then in the rest of Canada. If EFO cannot locate sufficient eggs, then a grader may seek to import eggs from outside Canada by applying for a permit from the federal Department of Foreign Affairs and International Trade.

[6] These arrangements are mandatory. Thus, though Sweda, Burnbrae and L.H. Gray were competitors, they had to buy and sell eggs to each other through EFO at prices established by EFO.

[7] Grading and inspection of eggs is governed by federal legislation and enforced by federal inspectors.

(c) Sweda’s Claims Against Burnbrae and L.H. Gray

[8] Sweda claims that Burnbrae and L.H. Gray conspired to sabotage Sweda’s business by supplying deficient eggs that did not pass inspection or were the wrong grade. When these eggs failed federal inspection or did not match Sweda’s needs, Sweda was unable to meet its supply obligations. It lost customers, primarily to L.H. Gray and Burnbrae. Sweda claims that this was all part of a conspiracy to drive it from the marketplace.

[9] Sweda also asserts claims arising from an uncompleted transaction to sell its business to Burnbrae and L.H. Gray, which both received confidential information from Sweda during the abortive transaction. Sweda alleges that Burnbrae and L.H. Gray misused the confidential information to Sweda’s detriment, in breach of both contractual and common law duties. Sweda also alleges that Burnbrae and L.H. Gray were not serious about buying Sweda, and pursued the abortive transaction to obtain the confidential information to harm Sweda’s business and drive it from the marketplace.

[10] There are many other allegations in the statement of claim, including:

(a) the Defendants” (including Burnbrae) conspired with each other to fix, maintain, or stabilize the price of eggs from at least January 31, 2000 to the present (para. 1(a)[^6]);

(b) the Defendants conspired to lessen unduly competition in the production, grading, sale and/or supply of eggs in Canada from at least January 31, 2000 to the present (para. 1(b));

(c) the Defendants are liable for “conspiracy, intentional interference with economic relations, and conduct which is contrary to Part VI of the Competition Act” (para. 1(d));

(d) L.H. Gray and Burnbrae are liable “for breach of contract with respect to the purported purchase of [Sweda’s business] and further breach of confidentiality agreements” (para. 1(e));

(e) the Defendants are jointly and severally liable for libel (para. 1(h));

(f) the Defendants are liable for unjust enrichment and taking of inequitable profit by unlawful conduct” (para. 1(i)).[^7]

[11] The Fresh Statement of Claim is long and repetitive. Causes of action are restated, often in different terms. In some places, additional causes of action that are not recited in paragraph 1 of the claim have been pleaded (for example, the alternative claims of negligence). However, the facts alleged to give rise to the various causes of action are generally encompassed by the claims in paragraph 1 of the claim, summarized above.

(d) L.H. Gray’s Prior Motion for Summary Judgment

[12] L.H. Gray moved for partial summary judgment in May 2013, seeking dismissal of the claims against it in respect to manipulation of egg-grading data and conspiracy. That motion was dismissed by C.J. Brown J. on July 22, 2013, on the dual basis that the motion was “premature”[^8] and in any event ought to be dismissed on the merits.[^9] Sweda takes the position that Burnbrae’s motion is, likewise, “premature”, and ought to be dismissed on the merits.

[2] Summary and Disposition

[13] This motion was argued before the Supreme Court of Canada released its decision in Hryniak v. Mauldin et al.[^10] It was argued on the basis of the “full appreciation” test stated by the Court of Appeal in Combined Air Mechanical v. Flesch.[^11] On that test, I was satisfied that summary judgment ought to be granted dismissing Sweda’s claims against Burnbrae. Hryniak changes the law of summary judgment, but does not change the result of this motion.

[14] Hryniak provides for a more proportional approach to motions for summary judgment. Precisely how this standard may develop will be seen as the law develops on a case by case basis. Sweda’s claim is large and complex. At its heart is an allegation that the two largest players in a tightly held industry conspired with each other, and with others, to drive Sweda, a smaller competitor, from the marketplace. The nominal claim for damages is large. The conduct alleged is very serious. This is not a case where the standard of proof on a motion for summary judgment would be relaxed in the name of proportionality. This is not to say that there should be no restraint on procedural complexity or cost: Sweda’s assertion that it would call nearly 100 witnesses at trial is ample basis for noting that even large-scale, complex and important litigation must be conducted with a sense of proportion and practicality. However, while the language of “full appreciation” may no longer govern the test for summary judgment, in order to achieve a “fair and just adjudication” of Sweda’s claims, I have proceeded on the basis that I should dismiss them only if I am satisfied that Sweda’s claims against Burnbrae cannot succeed at trial.

[15] Hryniak also provides a basis for a sort of reverse engineering of this motion, one that may be of great use on summary judgment motions in general. The Supreme Court of Canada is clear that the motions court should ask itself why it should not grant summary judgment. Where the motion does not succeed, the court’s answer to this question – why it should not grant summary judgment – will become an agenda for the case up to its final disposition, in most cases by the judge who presided on the motion for summary judgment. This exercise is salutary: if the matter is coming back to the motions judge, he has a strong incentive to decide what further materials and procedures he needs to get to the bottom of things.

[16] In this case, when I try to delimit the additional materials that I would require, the list covers every aspect of Sweda’s claims. I would need evidence to support Sweda’s allegations in respect to each element of each of the causes of action. No single element of any cause of action is made out by what Sweda has placed before the court. This is not a situation where there are small but fatal gaps in the case that could be filled. Rather, Sweda has made vast, sweeping allegations, and has effectively argued that if the court waits until the end of a protracted trial, there will be evidence to support the claims.

[17] Burnbrae was a competitor of Sweda’s. At one point it sought to buy Sweda. This proposal became a joint project with L.H. Gray. The sale was not agreed and so did not go ahead. In other respects, Burnbrae conducted itself as a competitor of Sweda’s within a closely regulated industry. Latterly, Sweda positioned itself as a supplier of niche eggs for which there was limited supply in Canada. Burnbrae felt that Sweda used this approach to obtain permission to import eggs from the United States, not because of a legitimate demand in Canada for niche eggs, but so that Sweda could avail itself of lower egg prices from American producers. Burnbrae was entitled to take this position, and to take legitimate steps to try to counteract Sweda’s strategy. Disagreements over these policies were properly addressed within EFO, and, if that organization’s decisions were unacceptable to Sweda, Sweda should have challenged them through EFO’s internal review processes and/or in the courts.

[18] It is not contested that Burnbrae sometimes delivered eggs to Sweda that did not pass inspection. There is no evidence that this was deliberate or part of a plan. And there is no evidence that this was even unusual. Eggs are perishable and fragile. Of course some will break. Sweda has to do more than show that sometimes Burnbrae delivered some eggs that were no longer suitable for sale to establish its sweeping allegations of conspiracy against Burnbrae. It must show that this was intentional, part of a plan, in furtherance of a conspiracy with L.H. Gray. It must establish that Burnbrae’s conduct caused harm to Sweda. And Sweda must show that this harm caused damages, and show what those damages were.

[19] There are said to be disputed production issues between Burnbrae and Sweda. However, the foundation for Sweda’s production requests from Burnbrae is skimpy, and what evidence Sweda has presented seems to undercut Sweda’s theory of its case against Burnbrae. The likely probative value of the requested production is scant. Sweda’s pursuit of this production has been less than diligent. And even if the disputed production had some probative value supporting Sweda’s claims, there is still no evidence that Sweda failed to meet its commitments, lost customers as result, and thereby suffered any damages. Sweda’s requested production from Burnbrae is less than a “fishing expedition”. Rather, it is a ruse to cloak the speculation that lies at the core of Sweda’s case with an air of remote possibility. The claims as against Burnbrae are chimeric, and this production issue does not leave the case as a potential claim that could yet be proved.

[20] When I conclude that “there is no evidence” to support essential elements of Sweda’s claims, I must register an important qualification. Sweda’s claims are supported by speculation, argument presented as evidence, unparticularized assertions, and vague references to isolated pieces of evidence. What is absent is a rigourous analysis and presentation that places the isolated pieces of evidence into a coherent context. And the few pieces of hard evidence do not knit into a coherent claim.

[21] I accept Sweda’s central argument that some elements of conspiracy are difficult to prove without full documentary and oral discovery of the defendants. But there are aspects of the claim that should be provable with evidence within Sweda’s ken – such as the impact of the defendants’ alleged anti-competitive conduct on the egg market, such as Sweda’s loss of customers and producers, and such as Sweda’s declining profitability leading to financial collapse.

[22] In some cases the court will defer a motion for summary judgment until after discoveries, or until some later event in the proceedings. Here, where Sweda has not shown a prima facie case for elements of its claim that should be open to proof by Sweda, the court will not defer this motion until after the extensive discovery process that Sweda envisions. Quite simply, Burnbrae should not be put to the expense and trouble in participating in a forensic inquiry into its conduct over a ten year period in the absence of some cogent basis for believing that there may be something to investigate.

[23] I was prepared to grant summary judgment under the old “full appreciation” test. Hryniak has eased the requirements for summary judgment, and so the result is unchanged. This motion for summary judgment is granted and Sweda’s claims are dismissed as against Burnbrae.

[3] The Law of Summary Judgment

[24] The motion was argued on October 9, 2013. As may be gathered from the length of this decision, this was a major motion for summary judgment, costly for the parties and time-consuming for the court. The Hryniak case had been taken under reserve by the Supreme Court in March 2013. Depending on the outcome in Hryniak and on this motion, it would have been possible for the changes between Combined Air and Hryniak to have been critical to the disposition of this motion. And had that been the case, releasing this decision prior to release of Hryniak could well have made it necessary for this exercise to have to be performed anew, by either or both of the Court of Appeal or on a re-hearing of this motion after appeal.[^12]

[25] Prior to Hryniak, the test for summary judgment was: can a full appreciation of the evidence and issues required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?[^13] Under this test, generally, in cases where there must be multiple findings of fact on the basis of testimony from a number of witnesses, and/or where there is a voluminous record, a motions judge will not be able to come to a “full appreciation” of the case without a trial. However, that does not mean that a substantial record, or numerous witnesses, will always preclude summary judgment. The focus is on the relationship of the record to the contested issues that have to be decided.[^14]

[26] The length and complexity of the statement of claim is of little significance on a motion for summary judgment. The plaintiffs must show that there is evidence to support their allegations.[^15] A party may not rest on allegations in its pleadings on a motion for summary judgment. The party must “put its best foot forward” or “lead trumps or risk losing”.[^16] Burnbrae argues that there is simply no evidence from which a court could find for Sweda against Burnbrae. If Burnbrae satisfies its burden of persuasion for this argument, then it falls to Sweda to show, on the basis of affidavit material or other evidence, specific facts raising a genuine issue requiring a trial.[^17]

[27] Generally, the court is entitled to assume that the record on a motion for summary judgment contains all the evidence the parties would present at trial.[^18] There are exceptions to this principle: Sweda argues that there is evidence missing from the record because of conduct by the defendants. As noted by C.J. Brown J., L.H. Gray and Sweda dispute whether various L.H. Gray documents ought to be produced. A Master’s motion on this issue was scheduled for December 2013. Sweda also relies on the anticipated evidence of Mr Norm Bourdeau, and claims that there is good reason to believe that his evidence has been affected by wrongful conduct by L.H. Gray, which has dissuaded Mr Bourdeau from testifying, which Sweda describes as “tampering” with a witness.

[28] In these circumstances, a burden of persuasion rests on Sweda to establish that it has taken reasonable steps to obtain the evidence it needs for the motion for summary judgment, and that the missing evidence would be material to the disposition of this motion.

[29] The “missing evidence” falls into three categories. Two concern L.H. Gray and the third concerns Burnbrae. None would affect the outcome of this motion:

(a) Voluminous documents said to show that L.H. Gray deliberately sent substandard eggs in its shipments to Sweda by (i) adjusting the settings on its grading machines; and (ii) inserting substandard eggs that had been rejected.

(b) Mr Bourdeau’s evidence of the facts described in (a), and his evidence that L.H. Gray instructed him to destroy electronically stored documents relevant to the litigation.

(c) Documents from Burnbrae respecting the results of their egg grading during the material times.

[30] In respect to (a) and (b), I proceed on the assumption[^19] that the disputed production and the anticipated evidence of Mr Bourdeau would establish what Sweda claims it will establish as against L.H. Gray. All of that would tell against L.H. Gray, but not against Burnbrae.

[31] In respect to (c), as I explain below, there is no basis on which to suppose that Burnbrae’s grading of eggs sent to Sweda was any different than its grading of other eggs. The foundation for the production request is (i) the undisputed fact that some shipments of eggs from Burnbrae to Sweda failed federal inspection; and (ii) the evidence that L.H. Gray deliberately tampered with its egg grading to send substandard eggs to Sweda. Given all of the circumstances and the record before me, I am not prepared to infer that the “missing production” from Burnbrae would establish anything material not already in evidence. Nor am I prepared to defer this summary judgment motion until after disputes over the “missing production” are resolved.

[32] Summary judgment motions come in all shapes and sizes, and this is recognized in the Supreme Court of Canada’s emphasis on “proportionality” as a controlling principle for summary judgment motions. This principle does not mean that large, complicated cases must go to trial, while small, single-issue cases should not. Nor does it mean that the “best foot forward” principle has been displaced; quite the reverse. If anything, this principle is even more important after Hryniak, because on an unsuccessful motion for summary judgment, the court will now rely on the record before it to decide what further steps will be necessary to bring the matter to a conclusion. To do this properly, the court will need to have the parties’ cases before it.

[33] As I read Hryniak, the court on a motion for summary judgment should undertake the following analysis:

1. The court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial;

2. On the basis of this record, the court decides whether it can make the necessary findings of fact, apply the law to the facts, and thereby achieve a fair and just adjudication of the case on the merits[^20];

3. If the court cannot grant judgment on the motion, the court should:

a. Decide those issues that can be decided in accordance with the principles described in 2), above;

b. Identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues[^21];

c. In the absence of compelling reasons to the contrary, the court should seize itself of the further steps required to bring the matter to a conclusion.

[34] The Supreme Court is clear in rejecting the traditional trial as the measure of when a judge may obtain a “full appreciation” of a case necessary to grant judgment. Obviously greater procedural rigour should bring with it a greater immersion in a case, and consequently a more profound understanding of it. But the test is now whether the court’s appreciation of the case is sufficient to rule on the merits fairly and justly without a trial, rather than the formal trial being the yardstick by which the requirements of fairness and justice are measured.

4. Effect of the Summary Judgment Motion Decided by C.J. Brown J.

[35] C.J. Brown J. had some evidence of legal wrongdoing by L.H. Gray:

(a) evidence from Norm Bourdeau that L.H. Gray directed that material evidence be destroyed;

(b) evidence provided by Norm Bourdeau of electronic copies of emails in the possession of L.H. Gray;

(c) evidence from Mr Bourdeau that L.H. Gray deliberately misgraded eggs destined for Sweda; and

(d) evidence that L.H. Gray retained and paid substantial amounts to a Sweda employee, Johannes Klei, to recruit Sweda producers and customers while Mr Klei was still a trusted senior Sweda employee.

[36] This evidence against L.H. Gray is asserted to be evidence of a conspiracy between L.H. Gray and Burnbrae. But before evidence admissible against L.H. Gray will be admitted into evidence against Burnbrae, Sweda must show evidence that Burnbrae was a member of the conspiracy. Unless Sweda can show that, the evidence against L.H. Gray does not tell against Burnbrae.

[37] It is on this basis that the decision of C.J. Brown J. is distinguishable from the motion before me. There was evidence before C.J. Brown J. which could, if believed, establish a conspiracy involving L.H. Gray and/or Johannes Klei. C.J. Brown J. did not find that there was evidence that Burnbrae is a member of that conspiracy. The few emails that reference Burnbrae are not a sufficient basis to make out a claim against Burnbrae. Thus my findings and decision do not conflict with those of C.J. Brown J.[^22]

5. Analysis of Sweda’s Claims

[38] In this section of these reasons, I analyse the claims against Burnbrae by looking at the evidence linked to each of the claims. I do so in the following order:

A. EFO Invoices to Sweda Producers in 2005

B. Negotiations to Purchase Sweda

a. Bad Faith

b. Misuse of Confidential Information

c. Breach of Contract

C. Conspiracy with Johannes Klei

D. Libel

E. Interference With Contractual Relations

F. Conspiracy

[39] This is a difficult exercise, not just because of the size or complexity of the claim, but because Sweda has not organized its materials and analysed the evidence to make it clear what evidence it has in respect to each of the allegations. There is evidence in the record, not referenced in the factum, which bears on some allegations. There are details of evidence pleaded that have not been analysed in the affidavits. There are exhibits to the affidavit evidence that are referenced in general terms in the affidavits, but are not analysed or explained.

[40] Overlaying this confusion, Sweda alleges that its difficulty establishing its case arises because of non-production from Burnbrae. The materials do not include motion materials for any motion to compel further production. What I have been told is that Burnbrae has refused to produce its own internal egg-grading documents on the basis that they are not relevant. The extent of the requested production is not clear: the conspiracy allegations spread from 2000 “to the present” (presumably around 2009 or 2010). It is not clear whether the inspection reports for impugned shipments to Sweda have been produced, although it seems to be common ground that those shipments passed inspection at Burnbrae but failed inspection at Sweda (in both instances the inspections were carried out by federal inspectors). It was not clear to me what other disclosure has been requested from Burnbrae and refused, and there is nothing identified in the record that provides this information. A motion for production from L.H. Gray was scheduled before the Master in December 2013, and was pending at the time of the motion before C.J. Brown J.; I was not advised of any motion that had been brought in respect to contested production from Burnbrae.

[41] The so-called missing production is not described with precision (aside from the general category of egg-grading data). It is not tied to specific issues in the case. And in the final pages of Sweda’s factum, it is linked to every conceivable issue in the case. For example:

(a) In respect to the unparticularized allegations of negligence, Sweda argues: “At this stage of the proceedings where there has been non-disclosure of nearly every significant document by [Burnbrae] and L.H. Gray, the Court should not dismiss any claim until full disclosure is complete. In the event the documents and discovery show every action against the Plaintiffs was intentional then the Plaintiffs will drop the negligence claim. Without proper disclosure it is premature to make that decision now.”[^23]

(b) In respect to the allegations of libel, Sweda argues that the so-called “Jackson letter” libeled Sweda. Mr Klei, who apparently wrote and sent the letter, had some “contact” with Burnbrae. This claim against Burnbrae ought not to be struck because Sweda “need[s] disclosure and discovery to provide the information required to properly investigate this claim.”[^24] There is no evidence that there is outstanding disclosure from Burnbrae relevant to this issue. On the record before me, there is no evidence, whatsoever, that Burnbrae published the Jackson Letter or is responsible in law for its publication by Mr Klei.

[42] It is Sweda’s responsibility to present its case systematically, in a way where the significance of its evidence can be grasped. Sweda has not done this anywhere in its materials. For example, as summarized above, there are multiple allegations of conspiracy, covering a broad range of anti-competitive trade torts and statutory causes of action over roughly a decade. In paragraph 62 of its factum, Sweda sets out a four part test for civil conspiracy in roughly the formulation I adopt in my analysis of these claims, below. Following a summary of emails in 2008 and 2009 that seem directed towards the issue of L.H. Gray deliberately sending substandard eggs to Sweda, Sweda then argues: “these emails and other documents are evidence of conspiracy between all the Defendants, however it is likely that [Burnbrae] has been the instigator of the conspiracy. Only full disclosure and discovery will tell”. This is not analysis of the evidence as it relates to the multiple allegations of conspiracy over a ten year period. And there is no justification for the statement that “likely… [Burnbrae] has been the instigator of the conspiracy”.

[43] To be clear, I am not dismissing this action against Burnbrae for a failure of advocacy in the organization and presentation of materials. In this section, below, I analyse the claims as summarily as I can, based on my review of the entire record. Then I review the record, from beginning to end, addressing specific items of evidence that I have not referenced in my analysis of the claims. And third, I return to the statement of claim, to cover any allegations made in it that, arguably, are not encompassed in my earlier analysis of the claims and the evidence, and my summary of the case derived from the claim for relief in paragraph 1 of the Fresh Statement of Claim. I do this, despite the inevitable repetition of materials, to make it clear to Sweda that I have considered its case from all angles. I am firm in my conclusion that, at least as regards the claims as against Burnbrae, Sweda has failed to put its best foot forward and demonstrate evidence on which it could succeed at trial, and that its failure to do so cannot be laid at the feet of Burnbrae for any failure of disclosure.

A. EFO’s Invoices to Sweda Producers in 2005

[44] Sweda alleges that EFO interfered in Sweda’s relationships with egg producers by issuing certain invoices back in 2005.

[45] EFO issued the impugned invoices in the course of its regulatory mandate. It was open to Sweda and/or its producers to challenge these invoices when they were issued, through the internal processes at EFO and, if not satisfied with the results of those processes, in court.

[46] The plaintiffs allege that Burnbrae is liable for the conduct of EFO and its employees because one of the members of the Board of EFO, Ms McFall, was, at the time, an employee or agent of Burnbrae.

[47] There is no evidence that individual members of the Board of EFO were involved in the decision to issue and pursue the impugned invoices. There is no evidence that Burnbrae was involved in the decision to issue the impugned invoices. There is no evidence that Ms McFall acted in conflict of interest, either generally or in respect to any specific decision of EFO. There is no evidence that these invoices caused damage to Sweda. There is no evidence that these invoices in 2005 were in any way linked to Sweda’s decision to discontinue its business some several years later.

[48] In short, there is no basis in the record for a claim against Burnbrae respecting EFO’s invoices to Sweda or its egg producers.

B. Impugned Negotiations to Purchase Sweda

[49] In December 2005, Burnbrae executed a confidentiality agreement and a letter of intent in connection with a proposed purchase of Sweda by Burnbrae. Negotiations continued, and L.H. Gray was brought into the transaction as a potential co-purchaser of Sweda’s business. L.H. Gray executed the confidentiality agreement and letter of intent in February 2006.[^25]

[50] The purchase agreement was never consummated.

(a) Bad Faith

[51] Sweda alleges that Burnbrae pursued these negotiations in bad faith, with no intention of ever closing the transaction. There is no evidence to support this allegation, other than the fact that the purchase transaction was never consummated.

[52] Sweda alleges that the primary purpose Burnbrae and L.H. Gray entered into negotiations with Sweda “was to acquire sensitive confidential information, including producer and customer lists, as well as corporate and financial records….”[^26] The egg industry is a relatively small and closely regulated one. There is no basis in the evidence to suppose that Burnbrae would not have been aware of all significant egg suppliers. Nowhere in the evidence does Sweda identify particular documents provided to Burnbrae that could have been of commercial value to Burnbrae (other than in assessing the proposed transaction to purchase Sweda). There is no evidence that any information was misused by Burnbrae. There is no evidence that Sweda suffered a detriment as a result of Burnbrae’s misuse of information. The allegations remain sweeping and bald.

[53] Burnbrae paid a $1 million deposit in respect to the proposed transaction. This payment was a demonstration of Burnbrae’s good faith interest in the transaction. Burnbrae incurred the costs of negotiation, including professional fees and management time, in connection with the proposed transaction. When the transaction failed, the $1 million deposit was returned to Burnbrae without objection from Sweda.

[54] Burnbrae agreed that the original letter of intent contemplated a share purchase. Burnbrae really wanted an asset purchase agreement, rather than a share purchase agreement: it did not want Sweda’s egg production quota (which was worth something in the order of about $18 million); it wanted the goodwill associated with Sweda’s business, which it valued at around $1 to $1.5 million, but which Sweda valued at around $3 million. And although Burnbrae was interested in the transaction, it did not have a lot of trust in Sweda’s principal (another reason it preferred an asset purchase to a share purchase). Finally, Burnbrae was not interested in Sweda’s new technology for tracing eggs from producer to consumer. Sweda considered its technology an important breakthrough and valuable.

[55] There is no evidence to the contrary in respect to Burnbrae’s account of the abortive transaction.

[56] There is no evidence that the failure to close the transaction caused damage to Sweda. There is no evidence that Sweda’s business depreciated from the time of the abortive transaction to the time Sweda discontinued its business. There is no evidence that Sweda was worse off as a result of selling its assets when it discontinued its business, rather than selling its business to Burnbrae at the time of the abortive transaction. As a matter of common sense, Sweda would have incurred some transaction costs thrown away in the abortive transaction, but these are not mentioned or particularized.

(b) Misuse of Confidential Information

[57] To establish breach of confidence, Sweda must show:

(a) Information was conveyed by Sweda to Burnbrae that was confidential;

(b) The information was conveyed in confidence;

(c) The information was misused by Burnbrae; and

(d) Burnbrae has been enriched and/or Sweda has suffered damages as a result.[^27]

[58] Sweda alleges that Burnbrae obtained confidential information during the negotiation process. Burnbrae agreed not to use this confidential information for any purpose other than the proposed transaction. Sweda alleges that Burnbrae misused this confidential information, to Sweda’s detriment and Burnbrae’s benefit.

[59] There are no particulars or evidence as to what confidential information Burnbrae received, how it used or misused that information, how it benefitted from so doing, and how Sweda was damaged as a result. This claim is all sweeping generalizations.

[60] There is evidence that some financial information regarding Sweda was provided to Burnbrae’s accountant, so that the accountant could prepare preliminary calculations of the tax consequences of doing the deal as an asset transaction or as a share transaction. Burnbrae’s uncontradicted evidence is that it never saw the information provided to its accountant, but rather received only the “bottom line” tax numbers from the accountant.

[61] As noted above, the egg industry is small. Egg graders, including both Burnbrae and Sweda, would know egg producers and major customers. It would not be difficult to learn which producers were supplying to which graders, and which graders were selling to which customers. In the absence of some evidence from Sweda, it is hard to understand what it is that Burnbrae could have learned during the abortive transaction that would have been confidential and could have been used by Burnbrae to its benefit and Sweda’s detriment.

[62] There is no basis in the evidence for a claim of misuse of confidential information by Burnbrae.

(c) Breach of Contract

[63] These allegations are not particularized. The agreements relating to the proposed purchase transaction have not been included in the motion materials. No specific reference has been made to contractual provisions that are said to have been breached. No evidence has been provided of any breach. There is no evidence and no particularization of damages said to have been caused by the breach.

[64] If these allegations are different legal packaging for the allegations of breach of trust and misuse of confidential information, then I have addressed the substance of those allegations above. If some other conduct by Burnbrae is alleged to be a breach of contract, that claim fails for lack of evidence.

C. Conspiracy with Johannes Klei

[65] Johannes Klei was a longstanding Sweda employee. In 2005, while still with Sweda, Mr Klei allegedly began to work with L.H. Gray. Sweda alleges that Klei acted improperly and breached his duties as an employee and former employee of Sweda. There is some evidence to support these allegations.[^28]

[66] Before doing work for L.H. Gray, Mr Klei met with Burnbrae. This was in May 2006. Mr Klei sought employment with Burnbrae. Burnbrae did not offer to employ Mr Klei and never did so.

[67] On the basis of Sweda’s allegations, and the evidence that it has concerning Mr Klei’s dealings with L.H. Gray, it appears that Mr Klei took the initiative in seeking new employment, and did so on a basis that he could harm Sweda. This evidence may well be part of a claim against L.H. Gray and against Mr Klei. But there is no evidence that Burnbrae did anything wrong in respect to Mr Klei. Burnbrae met with him and declined to employ him. There is no other evidence concerning Burnbrae in respect to this issue.

D. Libel

[68] Sweda alleges that Burnbrae libeled Sweda in the so-called “Jackson letter” in 2006. Burnbrae did not write or publish the Jackson letter. On the record before this court, Burnbrae did not even see the Jackson letter until it was produced in this litigation.

[69] In paragraphs 86 and 87 of the Fresh Statement of Claim, Sweda alleges that Burnbrae visited some or all of eight egg suppliers and republished or repeated the contents of the Jackson letter, to try to persuade the suppliers to stop supplying eggs to Sweda. There is no evidence to support any of these allegations.

[70] There is no evidence that Burnbrae had anything to do with the Jackson Letter and it is not liable for any libel contained in it.

E. Interference With Contractual Relations

[71] Sweda alleges that Burnbrae interfered in its contractual relations with three of its suppliers: Luke Van Aert, Ritchie Pilgrim and Elwyn Embury.

[72] In order to establish unlawful interference with economic relations, Sweda must prove:

(a) Burnbrae intended to injure Sweda, in that Burnbrae’s actions were targeted against Sweda;

(b) Sweda suffered economic loss; and

(c) Burnbrae interfered by unlawful means with the actions of a third party in which Sweda had an economic interest.[^29]

[73] Sweda complains that Burnbrae and L.H. Gray interfered in Sweda’s relations with egg producers. However, competing for suppliers and for customers is not unlawful interference with economic relations. And in an industry in which there are so few competitors, the court will be slow to draw an inference of specific negative animus from what could be fairly characterized as competitive behavior. The evidence put forward by Sweda falls far short of establishing any of the elements of this tort, aside from the common sense conclusion that whenever Burnbrae beat Sweda in the marketplace, Burnbrae stood to gain and Sweda stood to lose. Even acknowledging this common sense point, Sweda has not adduced any evidence of actual losses arising from this competitive behavior.

[74] The evidence indicates that there were discussions between Burnbrae and L.H. Gray about obtaining eggs from Van Aert, which would have had the effect of depriving Sweda of this source of egg production. At the time of these discussions, there was an ongoing contract between Sweda and Van Aert. The emails include discussions of possibly persuading Mr Van Aert to breach agreements with Sweda in order to sell to Burnbrae and/or L.H. Gray instead.

[75] However that is not what happened. Van Aert continued to supply eggs to Sweda through to the end of the contract. After the contract expired, Van Aert stopped doing business with Sweda and switched to Burnbrae and L.H. Gray. As Mr Van Aert explains in his evidence (reviewed below in detail), he was very disenchanted with Sweda but, even though he felt Sweda had breached the contract and he should be able to walk away from it, based on advice from his own lawyer, he “stuck it out” to the end of the contract before terminating his relationship with Sweda. On the basis of this evidence, Burnbrae did not seek to, and did not in fact, induce Van Aert to breach his contract with Sweda, and the impetus for changing from Sweda to Burnbrae and L.H. Gray, when that happened, was Van Aert’s unhappiness with Sweda, and not anything untoward done by Burnbrae or L.H. Gray.

[76] The claim respecting Pilgrim is not made out. Mr Pilgrim has died, but his wife has some knowledge of the material events. Her evidence, which was substantially sympathetic to Sweda and its President, Mr Lind, was nonetheless unhelpful to Sweda’s position in this case. Ms Pilgrim was aware that Burnbrae was interested in purchasing eggs from the Pilgrims, but she did not give evidence of anything untoward done by Burnbrae in this regard. The Pilgrims remained loyal to Sweda until Sweda discontinued its core business, and the Pilgrims needed a new purchaser for their eggs.

[77] The claim respecting the Embury farm is contrary to the evidence. As described in Mr Embury’s evidence, Embury was a long-time supplier to Burnbrae. It was Sweda that sought to disturb this status quo. It did so, insofar as it persuaded Embury to give Sweda a try, on the basis that Sweda said that Embury could earn more money by selling to Sweda. Embury sent one or two shipments to Sweda and then concluded that there was no great benefit in doing so. It then stopped sending its eggs to Sweda. Burnbrae may have offered some minor inducement to Embury, such as rebuilding a loading ramp, but there is no basis to conclude that there was anything improper in its doing this. Far from this being an example of Burnbrae interfering with a longstanding supplier relationship with Sweda, this was a case of Sweda unsuccessfully trying to lure a Burnbrae supplier away.

[78] In Sweda’s factum it is argued that Mr Embury’s “excuse” for staying with Burnbrae “makes no sense since he stopped delivery before he knew what he was going to be paid”. Here Sweda is impeaching its own witness, and on a point on which Sweda failed to examine him. The principle in Browne v. Dunn applies when arguing for a conclusion inconsistent with a witness one has called oneself.[^30] On the record before me, there is no basis to conclude that Mr Embury did not know what he was to be paid before decided not to send further shipments to Sweda.

[79] Further, there is no explanation as to why it would have been wrong for Burnbrae to try to persuade one of its suppliers to remain as one of its suppliers. If a financial incentive was offered to Embury, no explanation is provided as to the extent of this incentive, and why it would have been wrongful for Burnbrae to have provided it.[^31]

[80] There is simply no basis to conclude that Burnbrae wrongly interfered with Sweda’s contractual relations with Van Aert, Pilgrim or Embury.[^32]

[81] Finally, on a motion such as this, it is essential for a plaintiff to identify precisely the unlawful means it says has been used by a defendant, and the evidence that supports this identification. Here, as with the conspiracy allegations, specificity and rigour are the only way in which a plaintiff can satisfy the court that the claim concerns wrongful conduct rather than competitive behavior. On the basis of the record, it would be fair to say that Burnbrae competed with Sweda for suppliers, defended against Sweda’s efforts to lure a supplier from Burnbrae. Sweda does not explain why any of this would be unlawful conduct.

F. Conspiracy

[82] To establish the allegations of conspiracy, Sweda must prove that:

(a) There was an agreement between Burnbrae and others; and

(b) Burnbrae acted in furtherance of the agreement; and either

(c) (i) the predominant purpose of the conduct in furtherance of the conspiracy (whether lawful or unlawful) is to cause injury to Sweda; or

(ii) if the conduct in furtherance of the conspiracy was illegal, that it was directed towards Sweda and Burnbrae knew or should have known in the circumstances that Sweda was likely to be injured; and

(d) Sweda was injured as a result of the conspiracy.[^33]

[83] Under the third branch of the test, where lawful means are used in pursuit of the objects of an agreement, the defendants will not be liable if the predominant purpose is legitimate self-interest.[^34]

[84] The law recognizes that it may be difficult to obtain direct evidence of an agreement under the first branch of the test, or of either purpose or intention under the third branch of the test. These allegations may be proved by circumstantial evidence and inferences drawn from the evidence. These allegations cannot be proved on the basis of assumptions, speculation, or embellishment. When the parties are competitors in business, the court will not be swift to draw adverse inferences from legitimate competitive behaviour.[^35]

[85] As regards Burnbrae, Sweda identifies the following documents in support of its allegations:

(i) email dated July 22, 2009 in which EFO advised Burnbrae and L.H. Gray that the plaintiffs were seeking to buy particular grades and sizes of eggs. By email of the same date, L.H. Gray advised that it could possibly fill the requests for organic and omega eggs, but that some of the organic product would contain extra large rather than large eggs. Burnbrae did not respond to EFO’s email because it did not have surplus eggs available.

(ii) email dated September 9 2009 from L.H. Gray to Burnbrae (among others). L.H. Gray states that it wants a certain egg shipment to “look like they came from Burnbrae so they have to be delivered together”. Sweda says that this is evidence of cooperation between L.H. Gray and Burnbrae to deceive Sweda. Burnbrae responds that, at this point, L.H. Gray did not want to sell product to Sweda, and so it sold product to Burnbrae for resale to Sweda.

(iii) email dated September 29, 2009 from Burnbrae to L.H. Gray seeking specific eggs to fill an order requested by the plaintiffs. The comment is that it “[w]ould be nice to fill this order to block them from getting a sup.” In other words, Burnbrae wanted to fill a request for more eggs from the plaintiffs so they would not be in a position to seek an import permit. L.H. Gray responded that it could not fill the request. Burnbrae’s position at the time was that Sweda was seeking eggs of description and quantities that are widely known not to exist in the Ontario market so that it could obtain import permits to import cheaper eggs from the U.S.A. In any event, the alleged wrongful conduct here is Burnbrae’s efforts to obtain eggs to fill a request by Sweda.

(iv) email dated September 30, 2009 between Burnbrae and L.H. Gray. This related to a special campaign under which Burnbrae agreed to provide eggs to Shoppers Drug Mart, which was going to run a heavily advertised special price for eggs. L.H. Gary was concerned that Loblaws and other retailers would mount responding campaigns which could, in totality, result in a “run” on eggs and a potential shortage of eggs among graders.

(v) other emails: there are other emails relied upon by Sweda. These are emails that were neither sent to nor received by Burnbrae.

[86] In paragraph 97 of the Fresh Statement of Claim, Sweda sets out what it describes as particulars of its allegations of conspiracy against various defendants including Burnbrae. The thrust of the allegations is that Burnbrae was part of a conspiracy with Sweda and EFO (and their personnel and agents) which is reflected in the following things:

(a) The EFO investigation and levies;[^36]

(b) Supply of unmarketable eggs to Sweda through the EFO (both misgraded eggs, and eggs of a different grade than those ordered by Sweda);[^37]

(c) “interfering with [Sweda’s] business and contractual relations respecting its egg suppliers, and then ultimately dividing up [Sweda’s] former suppliers for the purpose of solidifying L.H. Gray[‘s] and Burnbrae’s collective monopoly of the industry”;

(d) “[C]ausing Sweda to be unable to supply its customers… and ultimately dividing up [Sweda’s] former customers, all for the purpose of solidifying [L.H. Gray’s] and Burnbrae’s collective monopoly in the industry”;

(e) Fixing prices in the egg market by shorting the market, trading customers in exchange for volume and price concessions. Eight particulars are provided. All are L.H. Gray communications. Only two, on their face, involve Burnbrae:

a. In an internal email it is noted that Burnbrae “has acquired the Rowe Farm account” around July 9, 2009. The email wonders if this means the end of Sweda as a competitor, and, if so, whether this would mean that L.H. Gray could raise prices and reduce rebates. No evidence was led on these matters on the motion.

b. In an email dated November 27, 2009, L.H. Gray’s President advises of a telephone conversation he had with Burnbrae in which Burnbrae “requested support for price increases on eggs”. No evidence was led by Sweda on the motion in support of this allegation. No evidence was led explaining how a plan to try to increase egg prices would be evidence of a conspiracy against Sweda.

(f) Conspiring with Johannes and John Klei “to harm the reputation, business and contractual relations of [Sweda]”.

[87] Starting on page 31 of the Fresh Statement of Claim, under the heading “THE FACTS: MOTIVE OF THE DEFENDANTS”, Sweda alleges that Sweda was targeted for three reasons:

(a) Sweda focused its business on “unconventional egg production”, and EFO and many egg producers were hostile to this business model. EFO, which is controlled by a board of directors elected by egg producers, acted in sympathy to the general hostility to this “unconventional egg production”.

(b) EFO’s manager, Mr Pelissero, was biased against the President of Sweda because of “personal issues” between them.

(c) Pelissero had a “preferential relationship” with L.H. Gray and Burnbrae, which was reflected in Pelissero ignoring or not acting on complaints by Sweda against L.H. Gray and Burnbrae, “while also aggressively and recklessly pursuing complaints by L.H. Gray and Burnbrae”. There are then listed 21 excerpts from emails which are said to particularize these allegations. The excerpts are provided without context and do not, on their face, establish the allegations. They may be evidence in support of the allegations; they may not be. No evidence was led on the Burnbrae motion for summary judgment to prove these emails or to explain how they are evidence of the allegations against Burnbrae.

[88] Starting on page 36 of the Fresh Statement of Claim, Sweda lists 37 Sweda customers and 14 Sweda egg producers “which were lost due to the collective improper activities and conduct of the Defendants”. Two particulars are provided. One relates to the Van Aert farm, which is addressed elsewhere in these reasons. The other is an internal L.H. Gray email indicating that L.H. Gray intended to solicit Sweda’s customers. No evidence was led of this particular on the Burnbrae motion for summary judgment, and in any event the allegation does not implicate Burnbrae. Aside from these two particulars, no particulars are given as to what Burnbrae is alleged to have done that constitutes “improper activities and conduct” that resulted in 37 customers and 14 producers being lost.

[89] In paragraphs 109-117, Sweda makes allegations against L.H. Gray and its President about deliberately misgrading eggs. None of these allegations is asserted against Burnbrae.

[90] In paragraph 119, Sweda pleads:

The practice of delivering eggs to breaking plants, controlled by the defendant that do not conform with egg regulations, allows excessive profits from eggs that should be considered inedible, and further denying access by [Sweda] to legitimate surplus declarations.

There are drafting problems with this paragraph and as a result its meaning is not clear. It is not clear, for example, who “the defendant” is referenced in the first line. Giving the paragraph a “generous” reading in the context of this motion, I interpret it as an allegation that Burnbrae (perhaps among others) profited from selling undergrade eggs for higher prices than they would otherwise have obtained, and damaged Sweda by effectively preventing Sweda from importing eggs. The general thrust of these allegations has been described in the record on the motion for summary judgment, and is addressed elsewhere in these reasons.

[91] Sweda argues that there may be other evidence that it cannot produce on this motion but which should be available for trial. This evidence falls into two categories:

(a) Production of Burnbrae’s egg grading records, which Sweda says will substantiate its claims that Burnbrae sold it substandard eggs; and

(b) Evidence of Mr Bourdeau, which Sweda says was not available on this motion because Mr Bourdeau has been tampered with as a witness and has become uncooperative.

The Egg Grading Records

[92] First, although Sweda has brought a motion to compel production of egg grading documents from L.H. Gray, it had not brought such a motion in respect of Burnbrae. Thus Sweda had not made reasonable efforts to obtain this information prior to this motion. Second, Sweda has no foundation for production of this evidence.

[93] In respect to this latter point, it is conceded that some shipments from Burnbrae to Sweda failed to pass inspection. There evidence before me is unclear, as to how often this happened, on what scale, and how this compares to general industry standards. There is no evidence before me that Sweda suffered any loss as a result of the shipments that failed to pass inspection. For example, Mr Jackson, in paragraph 124 of his affidavit, states:

the number of detentions of eggs that were received on eggs sent to the Plaintiffs were of a constant and significant amount. It would be devastating trying to service the Plaintiffs’ customers in a timely fashion. [Burnbrae] also shipped eggs that have been past the expiry date had black rot, were the wrong size, had [Burnbrae’s] coding on it and were stamped Omega when organic were requested. Attached as Exhibit “V”… is a copy of a Memorandum of Re-Grading regarding same.

It is not clear who wrote Exhibit “V”. It is not self-explanatory. It does not establish the proposition that detentions “were of a constant and significant amount”. The significance of the documents at tab “V” could not possibly be apparent to a trier of fact without a clear explanation and, perhaps some expert evidence. It is not clear to me how many eggs were detained, when, why, and what the consequences were of each detention.

[94] In paragraph 39 of Sweda’s factum it is stated that evidence that L.H. Gray “deliberately shipped eggs… which were not suitable for the consumer market” to Sweda is reflected in 12 enumerated detention orders issued by federal inspectors. There is no reference in the factum to where these orders may be found in the record. There is no breakdown of these orders by date or as between Burnbrae and L.H. Gray. It is not stated that these are all of the detention orders that were issued that make up this part of Sweda’s allegations (though it is hard to imagine why Sweda would not indicate the total number of detentions, since this would be within its knowledge). From the records I have reviewed, it appears that most or all of the impugned detained shipments were in 2009, and perhaps, and yet the allegations against Burnbrae run from 2000 “to the present”.

[95] Sweda has produced some records, obtained from federal inspection reports, which relate to Burnbrae’s inspection results generally. These records show a pattern of substandard shipments. Again, there is no evidence to show whether these test results are consistent with industry norms or whether they are substandard. More telling, these reports are in respect to Burnbrae’s own sales and shipments: eggs it graded and then sought to ship to its own customers or to persons other than Sweda. Thus these records showing a pattern of failed inspections actually undercut the theory of Sweda’s case. Sweda alleges that Burnbrae deliberately shipped substandard eggs to Sweda for the purpose of harming Sweda. These records seem to establish that there was a pattern of substandard grading, and that Sweda, like other intended recipients of Burnbrae eggs, received some substandard eggs. This claim is not for breach of contract in failing to deliver marketable eggs. It is claim that Burnbrae intentionally delivered substandard eggs to Sweda for the purpose of harming Sweda’s business. As against L.H. Gray, the allegations go so far as to suggest that grading machines were reset to result in Sweda being sent worse eggs than L.H. Gray sold to others.

[96] On the record before me, I conclude that Sweda received some shipments of substandard eggs from Burnbrae. I conclude that Burnbrae experienced regular inspection failures for its eggs. I am not able to conclude the rate at which Burnbrae eggs failed inspection, or whether this rate compared favourably or unfavourably with others in the industry. On the evidence, I conclude there is no basis to find that Sweda suffered any damages as a result of Burnbrae’s deficient shipments. There is no evidence that Burnbrae delivered unmarketable eggs to Sweda intentionally, or that it colluded with L.H. Gray to do so. Sweda has established that it received some egg shipments from Burnbrae that failed to pass inspection. That is the extent of this aspect of the case against Burnbrae.

[97] Sweda argues that federal regulations have “zero tolerance” for deficient eggs in grade A shipments. From this it asks the court to conclude that Burnbrae’s substandard shipments were “illegal”. Burnbrae’s evidence, uncontradicted, is that inspectors grade to a tolerance of 5% to 7%, and do not apply a standard of perfection. Burnbrae’s evidence, also not contradicted, is that Burnbrae’s inspection results compare very favourably with the industry as a whole. I accept Burnbrae’s evidence on this point. It was open to Sweda to lead evidence from federal inspectors about the standards applied to enforce the regulations, and to lead expert evidence about general practices in the industry. It did not do this, and so I am left with Burnbrae’s evidence, which seems to accord with common sense generally (though I cannot conclude that the stated tolerance of 5% to 7% is reasonable, or otherwise, on the limited record before me). Having accepted Burnbrae’s evidence on this point, it should be clear that when I refer to “substandard” or “deficient” shipments from Burnbrae, I mean nothing more than that the shipments failed inspection at Sweda. There is no evidence that Burnbrae’s grading was generally below accepted standards.

[98] In summary, Sweda has shown that Burnbrae shipped some substandard eggs to Sweda. Sweda has also shown that Burnbrae shipments to others sometimes failed inspection. Sweda has not shown that Burnbrae’s grading success rate varied between its shipments to Sweda and its shipments to others. It has not shown that Burnbrae’s grading success rate fell below industry norms. Sweda has not provided expert evidence to place any of the egg grading evidence in context. Sweda relies on a standard of perfection that seems unrealistic and is contradicted by the only concrete evidence before the court.

[99] The slender foundation offered by Sweda, and its long delay in seeking to compel production of further records, are an insufficient basis on which to delay decision on the motion for summary judgment.

[100] I contrast this record with the one before Justice C.J. Brown on the L.H. Gray motion for summary judgment. On that motion, Sweda had the evidence of a former employee of L.H. Gray who testified that L.H. Gray’s grading machine standards had been adjusted to downgrade the quality of eggs sold to Sweda. This evidence, if admitted at trial and believed, could establish that L.H. Gray supplied substandard eggs to Sweda intentionally. There is no comparable evidence against Burnbrae.

The Evidence of Mr Bourdeau

[101] Sweda alleges that on January 8, 2009, L.H. Gray ordered its employee, Norman Bourdeau, to destroy all of L.H. Gray’s electronic documents relevant to this litigation. Sweda also alleges that on May 7, 2009, Bourdeau told Sweda about these instructions and advised that he had retained the electronic documents, copies of some of which he provided to Sweda.

[102] Bourdeau never worked for Burnbrae, never had access to Burnbrae documents, and has never been involved in a dispute with Burnbrae.

[103] Sweda says that it “will have [Bourdeau] as one of its key witnesses at trial”. Sweda did not summons Bourdeau as a witness on this motion. Sweda claims that Bourdeau is now reluctant to be involved, and blames L.H. Gray for dissuading Bourdeau from coming forth with his evidence.

[104] First, it is not sufficient for Sweda to claim that a witness has been tampered with without trying to obtain the witness’s evidence for the motion. The Rules permit a party to compel a non-party witness to give evidence. Only if resort was had to this Rule and Mr Bourdeau did not attend, or attended but did not provide his evidence, would the court be prepared to entertain a conclusion that his evidence could not be obtained for the purpose of the motion. Second, there is no basis in the record before me to explain how Mr Bourdeau’s evidence implicates Burnbrae.

[105] In paragraph 17 of the Fresh Statement of Claim, Sweda alleges:

[Sweda] did not discover, and could not discover through the exercise of reasonable diligence, the existence of the claims sued upon until recently, because the Defendants and their co-conspirators actively, intentionally concealed the existence of the combination and conspiracy from the Plaintiffs and others and only the release of documents by a whistleblower related to [L.H. Gray] allowed [Sweda] to become aware of the Defendants conduct.

[106] The “whistleblower related to [L.H. Gray]” is Mr Bourdeau. From this pleading, one might infer that only through Mr Bourdeau’s evidence did Sweda learn of Burnbrae’s alleged involvement in a conspiracy. Thus perhaps there is little surprise that there is no other evidence to support the allegations. However, Mr Bourdeau’s anticipated evidence does not provide evidence of Burnbrae’s participation in L.H. Gray’s plans.

6. Sweda’s Evidence on this Motion

[107] In the preceding section of these reasons, I have analysed the case on the basis of the primary causes of actions alleged by Sweda. In this section I review the evidence on the motion. The sections overlap, and so there is some repetition.

[108] With respect, this multiple analysis should not be necessary on a motion of this kind. It is to be hoped that in future, as a result of Hryniak, no party defending one of these motions will present its case on the basis that the record is too complex and large to be tackled on a motion for summary judgment. Rather, any party opposing summary judgment will strive for maximum clarity and rigour in explaining the additional steps required to decide the case, and the reasons for those additional steps.

(a) Affidavit of Stuart Jackson

[109] Sweda’s primary evidence on this motion is the affidavit of Stuart Jackson sworn July 5, 2013.[^38] Mr Jackson is a former employee of Burnbrae and currently a Sweda employee. Mr Jackson explains that he is the primary deponent because Sweda’s President, Mr Lind, is suffering from a “continuing illness”.

[110] Mr Jackson deposes that “[t]he operations of… L.H. Gray and Burnbrae… are completely integrated with respect to the egg business”. He does not explain what he means by this. He does say that the two companies “control some 87% of the egg business in Canada”. He also says that “[b]oth Defendants have egg production barns, egg grading facilities, egg processing plants and retail sales operations”. These facts do not explain how the businesses are “completely integrated”. The rest of the evidence establishes that L.H. Gray and Burnbrae are the two largest businesses in the Canadian egg industry, and that they are competitors in this highly concentrated and regulated sector. In cross-examination, Mr Jackson agreed that Burnbrae and L.H. Gray are separate businesses, with separate boards of directors, separate employees. By “integrated” it seems that he meant that the industry is concentrated, Burnbrae and L.H. Gray are major players in it, and that they sometimes communicate with each other.[^39]

[111] In paragraphs 19 and 20, Mr Jackson sets out some of the allegations made by Sweda against “the Defendants”. Included in paragraph 20, Mr Jackson states that “[b]y placing under grade and dirty eggs in the grade A pack the Defendants gain an unlawful and significant market advantage”. As an assertion of fact, without evidence to support it, the statement is not entitled to any weight. As a conclusion, it is unsupported by facts. As an opinion, it is not admissible.

[112] In paragraphs 21 through 25, Mr Jackson provides summary evidence regarding the evidence of “whistleblower Norm Bourdeau”. The evidence attributed to Mr Bourdeau concerns conduct of L.H. Gray. It is not said that Mr Bourdeau has evidence implicating Burnbrae.

[113] Paragraph 23 references “an analysis of a sampling of the grading data provided by the whistleblower Norm Bourdeau”. Exhibit “E” does not appear to be what is described by Mr Jackson. It appears to be an analysis by someone else of data. The notes to the document are highly partisan in favour of Sweda’s position in this case, saying things like (at note 5): “The failure to report any short and broken demonstrates that this process is pure deliberate manipulation, illegal and demonstrates a failure to EFO.” If this is an analysis prepared by Mr Jackson, based on documents provided by Mr Bourdeau, it is not explained. Mr Jackson is not qualified as an expert witness, his analysis to reach his conclusions is not explained, and he is not independent. If this is Mr Bourdeau’s analysis, similar concerns apply, with the additional concern that the evidence is offered indirectly, without proper foundation, through Mr Jackson. And if this is something prepared by someone other than Mr Jackson or Mr Bourdeau, then this document is simply inadmissible given the manner in which it has been tendered. The data itself is not tied back to any specific documents in evidence on this motion, which means that no foundation has been provided for it. And in any event the data does not speak for itself. In the absence of a witness who analyses and explains the data – not by offering conclusions – but by enabling the court to understand the analysis and its significance, the data is unhelpful. In paragraph 27 of Sweda’s factum, it describes Exhibit “E” as “an analysis conducted by the Plaintiffs”, further deepening the mystery as to who prepared the document.

[114] In paragraph 22, Mr Jackson says “[t]his sampling of data and documents [provided by Bourdeau to Sweda] demonstrated the wider conspiracy that forms the basis for the Plaintiffs’ Fresh Statement of Claim”. Nowhere is it explained how this is so. Mr Bourdeau’s evidence concerns alleged intentional misgrading of eggs by L.H. Gray. It says nothing about Burnbrae doing the same thing. Nor does any of it indicate that Burnbrae knew of, acquiesced in, supported, or had anything to do with the alleged intentional misgrading of eggs by L.H. Gray.[^40] On the face of the documents, and the summary of the anticipated evidence of Mr Bourdeau, I conclude that there is nothing of substance in these documents linking Burnbrae to the alleged misconduct of L.H. Gray respecting misgrading of eggs.

[115] Paragraphs 26 to 39 address suggestions in Burnbrae’s evidence that Sweda disliked and sought to circumvent supply management of eggs. The general thrust of this section may be a fair response to some of Burnbrae’s evidence, though it seems to me to miss the larger point of it. In any event, this issue does not advance Sweda’s case against Burnbrae:

(a) Burnbrae’s point is that it believed (and continues to believe) that Sweda used its commitment to niche market eggs as a way to circumvent the general requirement to buy domestic eggs. As one of Sweda’s competitors, Burnbrae sought to curtail what it saw as an illegitimate tactic in a supply-managed industry. Sweda, of course, was entitled to explain and defend its conduct. As an example, when Sweda sought to purchase surplus medium or small eggs, Burnbrae might respond by saying that it had surplus large eggs for sale that it was willing to supply for medium and small eggs. Burnbrae argued that “niche” in this sense means inferior, and that as a matter of common sense, no one would prefer to have small eggs if they could have large ones for the same price. Burnbrae argued that it was well known that there would be little or no supply of the “niche market” small eggs, and that Sweda’s request for them was designed to manufacture a false demand for those eggs, which could then be sourced for lower prices from the U.S.A. As I understood it from comments from counsel, it would then fall to the EFO to determine whether Sweda would have to accept large eggs for an order for small or medium eggs in satisfaction of its order. It is easy to see how conflict over these issues could lead to different views of the appropriate solutions, matters that could involve EFO and the federal authorities responsible for deciding whether an import permit should be issued.

(b) It does not matter whether any of the parties were “in favour of” or “opposed to” a supply management policy for the egg industry. And it does not matter whether any of the parties had criticisms of the supply management system that was in place. Any of them was free to hold and express views on these topics. It also does not matter whether any of the parties pursued their businesses tactically, with a view as to how their businesses might best operate under the supply management system. It also does not matter whether the parties disagreed over what tactics were legitimate or illegitimate. In a regulated business under supply management, it can be expected that such conflicts will arise.

(c) The point of Burnbrae’s evidence on these points is to explain its perspective on these conflicts that did arise. This explanation provides context in which Burnbrae’s decision to ship large eggs for medium or small eggs can be understood. And given this context, which is not disputed, this is not evidence of a conspiracy.

[116] In paragraph 29, Mr Jackson says “[s]pecialty eggs include small, medium, cage free, free range and similar eggs. These eggs are more expensive to produce, allowing small family owned farms to produce specialty eggs as part of the non quota flocks supporting this niche and protected supply management”. Assuming without finding that cage free and free range eggs are more expensive to produce than other kinds of eggs, there is no explanation as to why small and medium eggs fit into the same category. This point is a feature that runs through the affidavit: grouping several items together and treating them as the same, without explanation, when they may not be so. This same feature applies to grouping of the parties. Frequently, L.H. Gray and Burnbrae are lumped together when discussing evidence that, on its face, only seems to pertain to L.H. Gray. This has made it difficult to understand, from the affidavit, the scope of the evidence, as against Burnbrae. And with respect, this is a failure of rigour in the preparation of this affidavit. The affidavit should not state that evidence implicates Burnbrae unless it does so. If Sweda takes the position that evidence implicating another defendant also implicates Burnbrae, then it should be clear about why it says Burnbrae is implicated – and this should be done, item by item for all the evidence that is said to weigh against Burnbrae. Here, where it seems there is scant evidence against Burnbrae, linking indirect evidence to Burnbrae must be done specifically, and cannot be accomplished by broad assertions that Mr Jackson “strongly believes” that Burnbrae is involved.

[117] In paragraph 30, Mr Jackson says that “Burnbrae did not respect the contracts and/or the relationships that [Sweda] had with its producers”. There are no particulars of what it is Burnbrae did that establishes this conclusion. Mr Jackson says “that graders such as Burnbrae and L.H. Gray did in fact have the ability to sell eggs to retail customers at a competitive negotiated price because they conspired with EFO to secure those prices”. I am not clear on what this even means. One particular is provided: “[f]or example… EFO gave Burnbrae… a premium on small and medium eggs[^41] to fulfill [Sweda’s] order…. EFO would then overcharge [Sweda] for the same product, thus putting [Sweda] in a non-competitive position with the rest of the marketplace”. This final sentence illustrates another general problem with Mr Jackson’s evidence. The sentence is couched as a generalization. No specifics are provided. The description is not sufficient to enable the court to understand what the underlying facts are. But the more neutral description offered in Burnbrae’s materials leads me to surmise that Sweda is here referring to Burnbrae’s efforts to supply large eggs in response to Sweda’s request for small and medium eggs. It was for EFO to decide, at first instance, whether the supply of larger eggs was a proper response to Sweda’s order. It was for EFO to determine the price to be collected from Sweda and paid to Burnbrae. Of course, either Sweda or Burnbrae was free to disagree with EFO’s decision. It was free for either to challenge the decision through the EFO, or eventually in the courts. The fact that each took a position with which the other disagreed does not establish anything more sinister than a disagreement between competitors in a highly regulated industry. And the fact that EFO accepted Burnbrae’s position on this issue does not show that Burnbrae and EFO conspired with each other.

[118] In paragraph 31, Mr Jackson states that “[g]iven the fact that Burnbrae (and L.H. Gray)… are themselves importing eggs, there is obviously no surplus.” This sentence is disingenuous. It mischaracterizes Burnbrae’s position on the issue, and miscasts the surplus/shortfall issue. Burnbrae did not take the position that there are never shortfalls in eggs or that Sweda should never have been permitted to import eggs. Its position, rather, is that Sweda was claiming demand for so-called niche market eggs that it knew were not available in Canada so that it could obtain them from the United States. Its position is that Sweda was creating demand for inferior eggs that could have been satisfied with higher quality domestic eggs.

[119] In paragraph 36, Mr Jackson states that Burnbrae has “disrupted [Sweda’s] day to day operations for years and the rights and freedoms of supply management”. He goes on to say that Sweda “has put up with numerous attacks on it by [Burnbrae] of the fundamental framework of supply management”. There are no particulars of any “disruptions” of Sweda’s operations by Burnbrae. There are no specifics of any “attacks” by Burnbrae on Sweda. There is no explanation as to what is meant by the phrase: “the rights and freedoms of supply management”.

[120] In paragraph 37, Mr Jackson says that L.H. Gray and Burnbrae “arranged with [EFO] after each [Sweda] producer visit for their representatives to visit the producer and solicit his production of eggs.” It is not explained what is meant by a “Sweda producer visit”. No particulars are given of “arrangements” between EFO and Burnbrae – who made them, what they were, or when they were made. No particulars are given of any “visit” by representatives of Burnbrae to any Sweda producers to solicit their production of eggs.[^42]

[121] Also in paragraph 37, Mr Jackson says that Burnbrae producers “were invoiced weeks later but were never visited by… EFO employee Mark Beavens.” No particulars are given in respect to this statement. No context is given to indicate the relevance of this information to any of the claims asserted against Burnbrae.

[122] Also in paragraph 37, Mr Jackson states that Burnbrae employee and counsel, Mary Jean McFall, was a member of the board of directors of EFO. He asserts that this establishes that “EFO does not act independently of” Burnbrae. It is not explained why it is improper for an employee or counsel of a major player in the egg industry to be on the board of directors of the industry-managed regulator.[^43] Nowhere is a single particular given of Ms McFall participating in any decision by the board of directors of EFO in respect to which she was in conflict of interest.

[123] In paragraph 39, Mr Jackson states: “I believe the loss of customers and producers was due to the aggressive position the dominant grader [Burnbrae] promoted…. [Burnbrae] took all [Sweda’s] large and key producers”. No particulars are provided.[^44] There is no explanation of what Burnbrae did that was “aggressive”.

[124] In paragraphs 44 to 66, Mr Jackson describes the evidence that Sweda intends to call at trial. Unfortunately, this portion of the affidavit does not describe the anticipated evidence that will be elicited from witnesses. Rather it is a series of lengthy lists of witnesses, without any summary of the material evidence that Sweda says that these witnesses will provide.

(a) In paragraph 46, 9 witnesses are listed who have died since the commencement of proceedings in 2005. It is not suggested that the evidence of these witnesses has been preserved in some fashion. It is the plaintiff’s responsibility to bring its case to trial. It does not assist Sweda that the case has dragged on so long that some of its anticipated evidence has disappeared because of the death of witnesses. Further, the claim against Burnbrae was commenced in 2009, not 2005.[^45]

(b) In paragraph 47, 14 egg farmers are listed as potential witnesses. The only description of their anticipated evidence is “the following egg farmers… had been involved with the Defendants relating to matters in dispute and these farmers are potential witnesses”.[^46] The three egg producers called as witnesses on this motion – Mr Van Aert, Ms Pilgrim and Mr Embury – did not substantiate Sweda’s claims.

(c) In paragraph 48, 15 potential witnesses are listed from retail stores or relevant to retail egg sales. Nothing is said about the nature of their potential evidence. The two witnesses from retailers examined on this motion did not substantiate Sweda’s claims. Indeed, their evidence seems irrelevant.

(d) In paragraph 49, “whistleblower Norm Boudreau” is identified as a “key witness”. As discussed elsewhere in these reasons, Mr Boudreau’s evidence concerns L.H. Gray, but does not appear to implicate Burnbrae. In paragraphs 50-57, Mr Jackson describes efforts by L.H. Gray, “assisted by [Burnbrae] and EFO”, “to tamper with this witness by bringing contempt charges in this action and acting as the prosecutor of such charges”. In addition, L.H. Gray sued Mr Bourdeau for $15 million, an action which was settled on undisclosed terms. Sweda had a pending motion for disclosure of the settlement agreement between Bourdeau and L.H. Gray. There are several points about this evidence:

a. “witness tampering” is a very serious allegation.[^47] Resort to the public court process against a person who is a witness would not ordinarily be encompassed by the phrase “witness tampering”.

b. Mr Jackson does not explain what he means when he says that the alleged witness tampering was “assisted by” Burnbrae and EFO. Later in his affidavit, Mr Jackson mentions that he understands that Burnbrae supported the position taken by L.H. Gray on a contempt motion brought against Mr Bourdeau before Lauwers J. (as he then was). Supporting the legal argument of another party to litigation cannot possibly, by itself, be a form of “assisting in witness tampering”. It can hardly be improper, let alone “witness tampering”, to advance a correct legal position, as was the case here: Lauwers J. found that Mr Bourdeau was in contempt of court and imposed a non-trivial fine and a substantial costs order against him.[^48] As a matter of common sense, Mr Bourdeau may now regret becoming involved in these issues. But that does not transform a successful contempt motion into “tampering with a witness”.

c. Mr Jackson states that “[t]he determination of the credibility of Mr Bourdeau is beyond the capacity of the summary judgment process”. I do not have Mr Bourdeau’s evidence before me on this motion, so I do not know how much his credibility would have come into play for the purposes of this motion. In any event, while Mr Bourdeau may be potentially a “key witness” as against L.H. Gray, nowhere is it explained how his evidence will be important in the case against Burnbrae. And it is not “beyond the capacity of the summary judgment process” to conclude that Mr Bourdeau’s anticipated evidence, as summarized in the materials before me, does not establish a case as against Burnbrae.

(e) In paragraph 59, 10 potential witnesses are listed from EFO, Egg Farmers of Canada and Canadian Poultry and Egg Council. These witnesses are said to be necessary “to provide evidence on the processing of supplementary egg permits”. Nothing is said of how the anticipated evidence of these witnesses bears on the conduct of Burnbrae.

(f) In paragraph 60, 31 potential witnesses are identified as employees or former employees of L.H. Gray. These persons are said to have been “aware of the manipulation of the [egg] grading process [at L.H. Gray]. This assertion is said to arise “[b]ased on the emails identified in the Fresh Statement of Claim”. There is no explanation as to why any of this potential evidence bears against Burnbrae. There is no summary of what it is expected that this evidence will show.

(g) In paragraph 61, 14 potential witnesses are identified as employees or former employees of Burnbrae. No particulars are given as to their anticipated evidence.

(h) Interestingly, nowhere does Mr Jackson set out the witnesses from Sweda or summarize their anticipated evidence. I presume that Mr Jackson himself is a potential witness, and that his anticipated evidence is fully summarized in the materials filed on the motion. Although this is not said anywhere, I presume that Sweda’s President is also a potential witness, if his health permits. I do not have a summary of the evidence he is expected to give at trial. A few other Sweda witnesses are referenced in the materials, and presumably they might testify, though there is no summary in Mr Jackson’s evidence of their anticipated evidence.

[125] Aside from Sweda witnesses, the list of potential witnesses appears to be a compendious listing of those left alive who might know something about the allegations in this case. On my rough counting, 94 potential witnesses have been identified, not counting Sweda personnel or experts retained by Sweda. All I can say at this juncture is that if the case did go to trial, I am sure the defendants would be most pleased if Sweda called, as its own witnesses, most of the material witnesses for the defendants. What is patently obvious is that Sweda has developed as long a list of potential witnesses as possible in order to make this case seem very large and complex, and very difficult to grasp on a motion for summary judgment. But in the absence of particularization of the anticipated evidence of all of these witnesses, the length of the list does not counteract the lack of substance in Sweda’s evidence.

[126] This section of the affidavit listing witnesses also contains some substantive statements. In paragraph 58, Mr Jackson references a case found in Sweda’s brief of authorities in which a trial judge found that Burnbrae “conspired with McCartney Farms to rig the bidding on the supply of eggs to the retail store Giant Tiger”. There is no explanation as to how this case is relevant to Sweda’s allegations in this case. It sounds like inadmissible similar fact evidence. It is possible that a foundation could be established at trial in which these findings could be put to a Burnbrae witness to impeach credibility. As described, it is not evidence in support of the allegations made about Burnbrae’s conduct towards Sweda.

[127] In paragraph 61, Mr Jackson states that “there are emails referred to in the Fresh Statement of Claim that identify that… L.H. Gray and Burnbrae… collaborated to manipulate the egg market in Ontario.” It is not explained how it is that these emails establish this proposition. Mr Jackson then says “[i]t is highly likely that [Burnbrae] also manipulated the egg grading data in the same or similar manner as described by [Bourdeau] for [L.H. Gray]”. There is no explanation as to why this is “highly likely”. Mr Jackson then states “this can only be confirmed after [Sweda] obtains the grading data of [Burnbrae] and completes discovery”. In sum, in my view Mr Jackson is saying that Sweda might develop some evidence to support his personal beliefs through production and discovery.

[128] In paragraph 62, Mr Jackson states as follows:

I previously worked for [Burnbrae] and my boss was Gord Davis…. I am aware from working with Mr Davis that [Burnbrae], under the direct guidance of Mr Davis, deliberately set the grading machine to allow cracks and incorrect sized eggs to be packed in the grade A cartons being sold to the consumer. I am also directly aware that it was the practice of [Burnbrae] to re-grade store returns and resell them as grade A eggs which was illegal.

There are three problems with this evidence, but one chief virtue. The allegation against Burnbrae in this case is that it conspired with L.H. Gray to sabotage Sweda’s business. One aspect of this alleged conspiracy is that Burnbrae and L.H. Gray deliberately sold undergrade eggs to Sweda, which could not be resold, damaging Sweda’s reputation. This evidence from Mr Jackson seems to be to the effect that Burnbrae routinely sold misgraded eggs to everyone – not as part of a conspiracy against Sweda, but as a general practice of characterizing their eggs as being of higher quality than they are. Second, it is not clear why it is relevant that Burnbrae regraded and resold store returns. Whether this was done, and whether it was legal, what does it have to do with the alleged conspiracy against Sweda? This current runs softly through Mr Jackson’s affidavit: it seems that it is supposed that any misconduct of any kind by Burnbrae may somehow be evidence of Sweda’s claims. Such is not the case, and it was incumbent on Sweda to show how the evidence it has relates to proving the claims it asserts against Burnbrae. Third, Mr Jackson does not explain how he is “aware from working with Mr Davis” of some of these things. He says that he is “directly aware” of the practice of regrading and reselling store returns, but he does not say how he knows this. This third criticism may be thought somewhat quibbling, which brings me to the chief virtue of the last sentence of this paragraph. It is a rare instance in this affidavit where Mr Jackson is testifying as to something involving Burnbrae that he says he knows himself.

[129] In paragraphs 65 and 66, Mr Jackson states:

65. I state and verily believe that conspiracy is an activity that takes place behind closed doors. [Sweda has] been fortunate to obtain a small sampling of e-mails that indicate improper and illegal activity, a small sampling of grading data that shows the illegal packing of cracked and dirty eggs in the grade A pack and obtained under Freedom of Information and the Federal Court copies of inspection reports that show significant levels of cracked eggs in the Grade A pack at the packing plant, contrary to the Egg Regulations of Canada.

66. In addition the next section on the activities of the Klei family independently of the emails, grading data demonstrates a pattern of deliberate harmful conduct against [Sweda] by the Defendant. This is still only a small sample of the evidence in the possession of the Defendant of their clandestine efforts behind closed doors to put [Sweda] out of business.

Paragraph 65 does summarize Sweda’s direct evidence as against Burnbrae. However, the emails do not indicate “improper and illegal activity” by Burnbrae. The grading data obtained about Burnbrae does not establish that Burnbrae deliberately sent worse eggs to Sweda than it did to others, for the purpose of undermining Sweda’s business. As discussed elsewhere, the alleged misconduct of the Klei family may implicate L.H. Gray, but there is no evidence that Burnbrae participated in it. It may be difficult to detect and to prove conspiracy claims. But it is not the law that for that reason the court will dispense with proof.

[130] In paragraphs 67-92, Mr Jackson addresses the conduct of Johannes Klei. Mr Klei was a longstanding Sweda employee. Mr Klei approached both Burnbrae and L.H. Gray for a job. Burnbrae had one meeting with Mr Klei and declined to employ him. L.H. Gray apparently did come to some arrangement with Mr Klei, and Sweda alleges that Klei, while still employed with Sweda, actively sought to undermine Sweda’s business and interests on L.H. Gray’s instructions.

[131] I assume for the purpose of this motion that the allegations concerning Mr Klei and L.H. Gray are true. What is the evidence that Burnbrae was involved in any way in this misconduct?

(a) Mr Klei met with Burnbrae once. There is no evidence that this meeting was anything other than what Burnbrae has described: Burnbrae declined to employ Mr Klei and had no further dealings with him.

(b) In paragraph 72, Mr Jackson states that Mr Klei approached another Sweda employee, Ms Jackson (no apparent relation to the affiant), and told her “that he had saved her job by contacting Burnbrae and L.H. Gray”. Reference is made to Exhibit “K” to confirm this statement. Exhibit “K” does not make any reference to Burnbrae. Further, even if Mr Klei had claimed to have made arrangements with Burnbrae, there does not appear to be any basis on which to believe him on this point.

(c) In paragraph 92, Mr Jackson draws the inference that Mr Klei was working with Burnbrae because Mr Klei is reported to have told Sweda employees that L.H. Gray and Burnbrae were going to buy Sweda and shut it down. This is not a necessary or even a particularly reasonable inference. The far more obvious inference is that Mr Klei learned about the anticipated demise of Sweda’s operations after the proposed sale to Burnbrae and L.H. Gray during his alleged dealings with L.H. Gray, the company for which he was apparently working and which was paying him.

(d) Later, in paragraph 147, Mr Jackson asserts that “the Defendants” had “access to [Sweda’s] confidential sales list and [used] it to solicit the stores’ business”. There is no evidence that Burnbrae had this information. There are no particulars, and no evidence to support the contention that Burnbrae used this information to solicit business from Sweda. And there is no evidence that any information Burnbrae did have came to Burnbrae from Mr Klei.

(e) In paragraph 149, Mr Jackson states: “I strongly believe that [Burnbrae was] well aware of the contact that [L.H. Gray] had with Klei”. Mr Jackson provides no basis for his “strong belief”, other than the fact that Burnbrae and L.H. Gray were negotiating together for the purchase of Sweda. In paragraph 152, Mr Jackson asserts that Burnbrae “was fully aware” of L.H. Gray’s dealings with Mr Klei – an assertion that is not supported by any evidence. In paragraph 150, Mr Jackson theorizes that the reason Burnbrae did not “pursue” Mr Klei was because it knew that Mr Klei was working for L.H. Gray. There is no evidence to support this speculation. Such evidence as there is indicates that Burnbrae rejected Mr Klei as a potential employee before Mr Klei made his arrangements with L.H. Gray.

[132] In paragraphs 110 and 111, Mr Jackson states that Burnbrae sold U.S.-sourced eggs as Canadian eggs, and that this conduct “is illegal and undermines supply management”. No particulars are given. There is no evidence to substantiate this statement. Nothing is said as to how these sales are connected to the allegations against Burnbrae in this case.

[133] In paragraph 112, Mr Jackson states that Exhibit “R” demonstrates that Burnbrae supplied eggs to Sweda that “did not meet the standards requested” by Sweda. Exhibit “R” contains 64 assorted pages.[^49] Their meaning is not self-evident. There is no explanation as to how these documents establish the proposition for which they are said to stand. Nor are these documents analysed to set out what they show in particular (for example, how many egg shipments are involved, when they were shipped, what the differences are between the eggs that were requested and the eggs that were supplied).

[134] In paragraph 115, Mr Jackson states that

“[w]hen [Sweda] received poor quality eggs from [L.H. Gray] and/or Burnbrae and these eggs were detained by the CFIA inspectors, it meant that [Sweda] had no eggs to ship to retail customers. If [Sweda] had shipped these poor quality eggs without re-inspection, its customers would have been appalled by the quality of eggs they were receiving and this would have reflected negatively on [Sweda].”

This passage speaks volumes in what it does and does not say. Nowhere does Mr Jackson state how often and when Sweda received “poor quality eggs” from Burnbrae.[^50] Not a single example is given of an instance where Sweda failed to meet its commitments to its retail customers because a Burnbrae shipment was detained by CFIA inspectors. There is no particularity. Then, in the latter portion of this passage, Mr Jackson speaks in the conditional voice respecting delivery of “poor quality eggs” to customers. That is, he describes what would have happened if bad eggs had been passed on the Sweda customers. The implication for the use of the conditional voice is that this never happened, but that it would have been a bad thing if it had.

[135] In paragraphs 116 and following, Mr Jackson describes dealings between Sweda and EICB[^51] around a 2009 import permit obtained by Sweda. Sweda was required by EICB to provide a list of customers and invoices for eggs for which Sweda sought an import permit. Mr Jackson then states “I understand and verily believe that EICB never requested this information from [L.H. Gray] and Burnbrae.” No source is given for Mr Jackson’s understanding. There is no basis on which to suppose that he would know, personally, of dealings between EICB and Burnbrae or L.H. Gray. And no explanation is given as to why it is relevant to the claim that Sweda was asked for its back-up documents. In paragraph 119, Mr Jackson states that an EFO investigator went to a retail store “and obtained from the store the information [Sweda] had provided to EICB”. In paragraph 120, Mr Jackson states that emails attached as Exhibit “U” show that “the Defendants” provided the information to L.H. Gray.

[136] This evidence is misleading. It seems to suggest that some clandestine operation took place through which L.H. Gray obtained sensitive business information about Sweda that had been compelled from Sweda by a regulatory body, the EICB. When one examines the back-up documents, that is not what happened. The dealings between EICB and Sweda are irrelevant to this incident. From the documents at Exhibits “T” and “U”, it seems clear that L.H. Gray complained that an egg retailer, a Foody store, was selling eggs to the public at a price from which it could be inferred that the eggs had been sold to Foody below prices set by EFO. In simple terms, there were grounds to believe that someone was selling eggs for less than the mandated price. EFO investigated. EFO determined that the eggs were being sold to the public for less than market price. And EFO determined that the eggs had been supplied to Foody by Sweda. And finally, EFO obtained an invoice from Sweda to Foody that showed that Sweda had sold to Foody at the stipulated price. Foody had then sold the eggs for less than cost, as a “loss leader”. As a result of the investigation, Sweda was exonerated. EFO provided L.H. Gray with a copy of the invoice that demonstrated Sweda had done nothing wrong, and the case was closed.

[137] In paragraph 140, Mr Jackson states that Burnbrae “has always used the dominant position to manipulate the supply management system. Its control over industry people, staff at [EFO], EFC, DFAIT and others is an absolute abuse of the system.” There are no particulars provided of Burnbrae’s “use” of its “dominant position”. There is no explanation as to what is meant by the phrase “manipulate the supply management system”. There is no evidence or particulars of “industry people” or how they were “controlled” by Burnbrae. There are no particulars as to what these “people” did, under the “control” of Burnbrae.

[138] In paragraph 142, Mr Jackson states that Burnbrae “chose to participate in a conspiracy with… L.H. Gray and EFO”. The conspiracy is asserted here, again, with no particulars at all. “They have abused their dominant position in the marketplace”. Again, no particulars. “They have also caused the erosion of supply management where industry has captured the system”. It is not clear what this even means, and again, there are no particulars. And then Mr Jackson states: “Poor eggs being packed in consumer cartons is evidence (as per Freedom of Information documents) that there is more than ample evidence of what [Burnbrae was] doing and the reasons behind their actions.” It seems that here Mr Jackson contends that the broad, unparticularized allegations are substantiated by the evidence of misgrading of eggs contained in inspection reports obtained from federal authorities. But the statement is more subtle than this (unless it is just badly drafted): the evidence of misgrading “is evidence… that there is more than ample evidence”. That is, it is evidence that there is evidence. And, somehow, this evidence, that there is evidence, is also evidence of Burnbrae’s “reasons behind their actions”. To the extent that this is not empty verbiage it is simply nonsense.

[139] In paragraph 143, Mr Jackson refers to “years of abuse of [Burnbrae’s’ dominant position in the industry”. There are no particulars. He states that [Burnbrae has] attacked [Sweda] in many forms”. He does not describe any of these “many forms”. And he states “[Burnbrae] failed to respect producer and store contracts that [Sweda] held”, again, without any particulars.

[140] In paragraph 148, Mr Jackson says that “there are many examples in the existing documents… that show conspiracy, collusion and abuse of dominant position”. Mr Jackson does not give any of these many examples. He states “[t]here is a clear pattern and history of bad behavior”. He does not describe this pattern or particularize it.

[141] In paragraph 153, Mr Jackson states that it is his “belief that there was little or no good faith” in the negotiations between Burnbrae and Sweda. The only reason he gives for this belief is that Burnbrae did not tell Sweda that Klei was working for L.H. Gray. It is true that Burnbrae did not tell this to Sweda; however there is no evidence that Burnbrae knew about it.

[142] In paragraph 154, Mr Jackson lists categories of confidential information provided to Burnbrae. He describes the general nature of this information. None of the information is attached to the affidavit, and thus the court cannot assess how sensitive or useful it might have been. Mr Jackson then asserts that Burnbrae “had and used this information”. There are no particulars as to how this information was used by Burnbrae, and how this use benefitted Burnbrae or damaged Sweda.

[143] In paragraph 158, Mr Jackson states that after the proposed transaction ended, “L.H. Gray and Klei] “had looted most of the valued customer list and producer’s list”. There are no particulars given of what producers and customers switched from Sweda to L.H. Gray, or when. Mr Jackson then states that after this “looting”, Burnbrae (with help from others) “were able to finish off [Sweda]”. There are no particulars as to what Burnbrae did that “finished off” Sweda.

[144] In paragraph 159, Mr Jackson states that “after the sale… almost all of the key customers [of Sweda’s] were taken over by [Burnbrae] or [L.H. Gray]”. It is not clear what the significance is of this evidence. The “sale” referenced here is the completed sale of Sweda’s business (not to Burnbrae or L.H. Gray). Sweda’s customers would have to buy their eggs elsewhere after Sweda went out of business, and it is hardly surprising that many of them would end up buying eggs from the two businesses that occupy 87% of the market.

[145] In paragraphs 160 to 164, Mr Jackson references CFIA egg inspection reports of egg grading inspections of L.H. Gray and Burnbrae (in respect to shipments of eggs not destined for Sweda). In paragraph 164, Mr Jackson states that these reports show “that eggs were being shipped by [Burnbrae and L.H. Gray] in violation of the Egg Regulations of Canada, which have zero tolerance for cracks in grade A eggs….” The import of this evidence is addressed above, in my analysis of the causes of action. Here, in the affidavit, where this evidence is introduced, there is no explanation as to how this evidence is relevant to or supports Sweda’s claims against Burnbrae.

Summary Comments

[146] Mr Jackson’s affidavit does not analyse the evidence and set it out in a way where it can be linked to the various causes of action. The general allegations are repeated, often, in broad and unqualified language. This just will not do. The central task of advocacy is the careful selection and organization of facts, referenced to the evidence from which those facts are established. Here, instead, the general allegations are repeated, with vague reference to the entire record of evidence that is said to bear them out.

[147] Perhaps it is thought that a court, faced with the daunting task of evaluating the case, will avoid that responsibility by passing the buck to the trial judge. If that is the tactical thought behind this sort of presentation then it should be clear that it is a failing tactic. Burnbrae has satisfied me that there is almost no evidence implicating Burnbrae in the broad allegations asserted by Sweda, and that such limited evidence as there is could not possibly prove the case. Sweda, then faced with the burden of showing a serious issue requiring a trial, has failed to do that, but has tried to hide the paucity of evidence behind a confusing and disorganized swath of materials.

(b) Affidavit of Larry Rosevear

[148] Sweda has provided a report from appraiser Larry Rosevear on the issue of damages. Burnbrae takes exception to this evidence in several respects. However, these issues can be distilled into two basic points. The Rosevear affidavit is based on the premise that Sweda suffered loss because it sold business assets after having been driven out of the market by Burnbrae and the other defendants. The damages report is based on the premise that, had Sweda not been driven out of the market, it would have continued in business. It would have continued to earn profits, and its business assets would have appreciated.

[149] If Sweda was driven from the marketplace by illegal and anti-competitive behavior of Burnbrae and others, it stands to reason that it will have suffered loss, both in terms of lost profits and, potentially, loss of appreciation of business assets. On this motion for summary judgment, it is not necessary for Sweda to prove its exact losses. If Sweda can prove its over-arching claim, and establish that Burnbrae caused Sweda to lose its business (as “cause” is understood legally in this context), then the precise quantification of loss could be left for trial or a reference. In the context of this case, I conclude that the Rosevear report establishes that the potential damages are not de minimis, if all these things could be proved.

[150] What is not proved in the Rosevear affidavit is causation. And this is not proved elsewhere in the record: the history of the decline and fall of Sweda is addressed solely in the broad assertions in Mr Jackson’s affidavit, unsupported by particulars or evidence. There are no documents showing declines in sales, profitability, customer bases, producer bases, or any of the other aspects of Sweda’s business.[^52] Instead, there is a set of grand assertions that many bad things happened, leading to the collapse of Sweda’s business. That is not sufficient to establish that the conduct of Burnbrae (and others) wrongfully caused Sweda’s business to collapse.

(c) Other Expert Evidence

[151] This section regarding other expert evidence is short because there was none. This was a significant omission in Sweda’s materials. The egg industry, the supply management system, egg grading, and the tightly-knit nature of the industry as a whole, are not matters of general knowledge of which a judge may take judicial notice. As described, Mr Jackson’s affidavit includes broad sweeping assertions that are anything but neutral or independent. No doubt Mr Jackson has long experience in the egg industry, but he was not put forward as an expert, his personal opinions cannot be treated as evidence on this motion.

[152] The egg grading records are an obvious point for which expert evidence could have been useful. This court has no idea what normal inspection results are, the usual rate at which cracked, broken or “short” eggs are found in shipments, or what befalls those eggs that are below standard, or the shipments of which they are a part. It is not sufficient to place inspection reports before the court and ask the court, without expert assistance, to interpret the reports and draw conclusions about whether suppliers have acted wrongly as a result.

[153] Similar considerations apply to the issue of causation – the alleged link between Sweda’s demise as a significant egg supplier and grader, and the alleged misconduct of Burnbrae, L.H. Gray, and the other defendants. There is no analysis of alleged wrongful conduct and alleged losses sustained by Sweda. For example, there are no narratives stating that a particular shipment of eggs was substandard, resulting in Sweda being unable to deliver a specific order for eggs to a specific customer. There is then no further analysis showing that Sweda lost that particular customer, and linking the failed delivery (or deliveries) to that loss.

[154] Finally, there is no expert report addressing the alleged infringements of the Competition Act. Price-fixing and market manipulation are difficult matters to prove, and cannot be established by general assertions and expressions of Mr Jackson’s personal opinions.

[155] As noted in my review of the law of summary judgment, the court is entitled to presume that it has before it all of the evidence that will be led at trial, that the parties have put their best feet forward. The absence of expert evidence tells against Sweda’s case, and cannot be explained on the basis of “missing production” or a witness who is now uncooperative.

(d) Examinations of Witnesses

(1) WalMart and Loblaws

[156] Sweda examined representatives of WalMart and Loblaws.[^53] I was unable to divine any material evidence in these examinations.[^54]

(2) Luke Van Aert

[157] Luke Van Aert, an egg producer, was examined by Sweda. Mr Van Aert testified that his family, long-time egg producers, started into the specialty egg business in around 2005, after Burnbrae indicated an interest in organic and free range eggs. Ultimately, Mr Van Aert signed a contract with Sweda, for a two year period. The duration of the contract matched a two year commitment that Sweda had to sell eggs to Longo’s. The written contract was a feature of doing business with Sweda; with other graders “a handshake seemed to be good enough”.[^55]

[158] Mr Van Aert sold his eggs to Sweda for two years. Then he switched to Burnbrae. Mr Van Aert gave Sweda six months’ notice that he did not intend to continue at the end of the contract. Mr Van Aert explained that he was unhappy with his arrangement with Sweda well before the end of the contract. Sweda did not pay him a premium on medium eggs, which he had understood it would.[^56] Mr Van Aert believed that Sweda had guaranteed him a profit of $20 per bird, which it failed to honour.[^57] And then Sweda switched from purchasing organics to free run eggs: it was at this point Mr Van Aert looked to get out of the contract.[^58] He believed that this unilateral change in the arrangements was not permitted under the contract. He sought legal advice. His lawyer told him that he would be better to “tough it out” to the end of the contract, give notice six months before it ended, and then terminate the contract. He was advised that this would be more prudent than breaking the contract.[^59] Mr Van Aert followed this advice.

[159] Mr Van Aert did not rely on advice from Burnbrae in deciding to stop selling his eggs to Sweda; he relied on his own business judgment and the advice he received from his own lawyer.[^60]

(3) Elwyn Embury

[160] Mr Embury, an egg producer, was examined by Sweda. Mr Embury and his family had long sent their eggs to Burnbrae.[^61] Then Mr Embury was approached by Sweda. Mr Lind, the President of Sweda, told Mr Embury that he could expect better grades and more money if he sent his eggs to Sweda for grading. On this basis, Mr Embury was persuaded to try Sweda: “so we tried a couple of loads”.[^62]

[161] Mr Embury sent one or two truckloads to Sweda. He did not receive much more money. In fact, he may have got slightly less than he got from Burnbrae. It would be bothersome to have supplies and equipment for two graders, and keeping the two straight could be confusing for his staff. So unless there was a real monetary benefit for him in using Sweda, he would not continue. He did not send more eggs to Sweda after the first one or two truckloads.[^63]

(4) Dawn Elizabeth Pilgrim

[162] Sweda examined Ms Pilgrim who, together with her late husband, Ritchie Pilgrim, were farmers. Mr Pilgrim was in charge of the egg operation, and Ms Pilgrim was responsible for their turkey farming operation. Ms Pilgrim did not have much to do with the eggs because of the risk of cross-contamination between chickens and turkeys.

[163] Between 2003 and 2010, Pilgrim used two egg graders: L.H. Gray and Sweda, the latter for brown eggs.[^64] Up to 2003, Pilgrim had supplied to Burnbrae, but this ended when Pilgrim signed a two-year deal with Sweda in 2003, and another contract with Sweda in 2005.[^65]

[164] The balance of Ms Pilgrim’s evidence largely concerned relations with EFO. She described a dispute in 2003 about EFO levies that she viewed as “punitive” and aimed at Sweda producers.[^66] She did not describe the substance of this dispute or how it was ultimately resolved. She described difficulties they had with some of EFO’s inspectors.[^67] She recounted her memory of an election to the EFO in 2004, when Svende Lind, the President of Sweda, ran unsuccessfully to become a member of the board of directors of EFO. She told of concerns she had about EFO’s executive director, Mr Pelissero.[^68] And Ms Pilgrim described another dispute with EFO over levies, this time in 2005. She indicated that this dispute was not targeted against Sweda or its producers, but was of more general concern.

[165] Ms Pilgrim did not mention Burnbrae at all in connection with any of these topics. Rather, she described these issues as disputes over the control, management, and practices of EFO and Mr Pelissero. She did not describe any of these issues as related to some conspiracy involving Burnbrae and/or L.H. Gray, but rather a question of the proper management of EFO.

(e) Cross Examination of Burnbrae Witnesses

(1) Joseph Edward Hudson

[166] Mr Hudson is Vice-President of Sales and Industry Relations for Burnbrae, and has worked in various positions with the company for over thirty years, since he was still in his teens.

[167] Roughly the first half of this cross-examination concerns Mr Hudson’s opinion that Sweda and its President, Mr Lind, were seeking to undermine the supply management system for eggs in Canada. As noted above, Mr Hudson did assert this view, and Sweda is entitled to challenge it. Also as noted above, the reason Mr Hudson expressed his opinion on this point was to explain Burnbrae’s response to various things it believed Sweda was doing as a competitor in the egg business. This is context. It does not matter whether Mr Hudson’s views are correct on this point.

[168] That said, on the basis of the record before me, Sweda’s proposed changes to the rules governing egg supply management would have had the effect of undercutting the supply management system. Under the current system, farmers are permitted to have non-quota flocks of no more than 99 birds. On Mr Hudson’s evidence, which I accept, it would not be economic to carry on business as an egg farmer with such a small supply of laying hens, and farmers who do keep such small flocks are restricted to selling their eggs themselves, on a small scale, which does not impact on the overall management of egg supply to the public. A flock of 3,000 birds, on the other hand, could be run as a commercially viable operation. If this was permitted off-quota, the supply of eggs in the commercial market would skyrocket, with predictable results for producers: an oversupply of eggs and a decline in profitability: precisely the situation that threatened the entire industry and led to the creation of the supply management system back in the 1970’s. This conclusion is not tempered by a qualification that off-quota flocks would have to be free range. While it is more expensive to produce free range eggs, an oversupply of free range eggs would lead to price drops that would place material downward pressure on the price of “regular” eggs. To quote from Mr Hudson’s cross-examination evidence, “[h]ow do you have supply management if you can’t manage supply?”[^69]

[169] And all that having been said, the record before me on these issues is not complete, and it may be that Sweda would have compelling answers to defend its position(s) on these issues. These are policy issues, properly decided within the egg industry and through government policy. My conclusion, that Mr Hudson’s views are more persuasive on the materials before me, leads to one finding material to this motion: Burnbrae had a principled objection to Sweda’s proposals for change in supply management in the egg industry, and Burnbrae was entitled to pursue its vision of sound policy within the industry, within the marketplace, and with government. It did so and I find that it did so in good faith.

[170] As for Sweda, it does not matter whether it was “against” supply management, whether it advocated policies that would undermine supply management, or whether its expressed views have been misunderstood. I accept that it pursued its own views of sound policy in good faith, believing them to be sound and in accord with Sweda’s own best interests. In short, I find that Sweda and Burnbrae had different views on these issues. Each was entitled to its view.

[171] Mr Hudson was also cross-examined on emails that are described in the Fresh Statement of Claim and are said to have originated in L.H. Gray’s records:

(a) In an extensive and persuasive series of answers, Mr Hudson provides the likely context for an email between L.H. Gray and Burnbrae about supporting a 0.5 cent per egg increase in prices.[^70] This was about a proposed increase in prices for eggs to be sold through Egg Farmers of Canada for use in egg processing – that is, it concerned fixed tariffs for eggs within the industry. This is a matter which is regulated, and Burnbrae and L.H. Gray were entitled to discuss this issue and take a public position on it within the industry. There is no basis, on the evidence before me, to conclude that there was anything wrongful in these discussions, or that they had any impact at all on Sweda. This discussion relates to another point made by Mr Hudson during his cross-examination. He acknowledged that Burnbrae and L.H. Gray would discuss the prices at which they would buy and sell eggs to each other. This, in his view, would be common practice among graders. They did not, he said, discuss between themselves what they charged their own customers, though price regimes were commonly known, since large customers would make it clear if lower prices were on offer from the competition.[^71]

(b) Mr Hudson is asked about some L.H. Gray emails that appear more problematic. In one, the writer states: “I am sure I do not need to remind you that what we are discussing is illegal”. Mr Hudson does not know what is being discussed that would be illegal. He is not challenged on this answer, and nowhere else in the record is it said what it is that the L.H. Gray personnel are discussing among themselves that is “illegal”. This email is not tied to any allegations in the claim, or to conduct harmful to Sweda, or to damages caused to Sweda.

(c) Mr Hudson is asked about an internal L.H. Gray email that describes conversations with Ian McFall, a senior Burnbrae employee. The gist of the conversation related to “trading” a Quebec customer from L.H. Gray to Burnbrae “for volume or price considerations in Ontario”. Later in the email, Mr McFall is stated to have agreed with an L.H. Gray business associate to “quote high” on a particular account so that another firm would get the business. Mr Hudson has no knowledge of these matters himself. He testified that he spoke with Ian McFall, who did not recall these conversations. The email does describe the conversations as illegal, and suggests that Mr McFall, and his wife, Mary Jean McFall, would both likely understand that what was being discussed was illegal, since they are both lawyers. Mr Hudson reports that he does not know what is meant by the emails, since he was not privy to any of the communications, and states that Mr McFall does not know either. These emails appear more sinister than other evidence, at least as regards Burnbrae. They could be characterized as some evidence of price-fixing and market manipulation between Burnbrae and L.H. Gray. However, no evidence is provided as to whether any of these reported conversations led to an agreement, whether the agreement was carried out, what the agreement was, what its effects were, what effect, if any, it had on Sweda, and what Sweda’s losses were as a result.

(d) Mr Hudson is asked about the routine presence of cracked eggs in shipments from Burnbrae. He is asked what per cent of cracks are allowed in a grade A “pack”. He answers that this is not directly in his field of expertise but that he believes that they are “allowed… up to 7 percent in the plant….” Counsel then says “If I told you the regulation said zero, you would not believe me?” Mr Hudson responds: ‘I don’t know. There is a… CFIA grades to a tolerance, and the tolerance is somewhere in the 5 to 7 percent or something like that... [t]hat is the way the rules have always been enforced.”[^72] Counsel points out that referenced inspection reports show that the eggs in the load “have a level of cracks in them.” Mr Hudson responds: “Yes, they do. They are eggs. Every time you touch them, you are going to add cracks to them….”[^73]

(e) Mr Hudson sat in on the meeting between Johannes Klei and the President of Burnbrae. So far as Mr Hudson knows there was only the one meeting. Mr Klei was very unhappy with Mr Lind, the President of Sweda. Mr Klei claimed that he had invested money in Sweda and had not received it back or been accorded an ownership interest in the company. Mr Hudson put it this way: “Mr Klei was generally disgruntled. He was feeling that he had been cheated… [i]n respect of… the money he had put into [Sweda] and he was pretty upset and feeling like he had been unfairly treated, and he wanted to find a way to get some money back out of this business….”[^74]

[172] Mr Hudson was cross examined on the suggestion in his affidavit that it was Sweda, not Burnbrae, who tampered with eggs and egg inspection information. Mr Hudson’s evidence was based on a chain of logic as follows: egg shipments were inspected by federal inspectors after grading had been done at Burnbrae but before the eggs were shipped to Sweda. The eggs passed inspection and the shipment was sealed and then delivered to Sweda. Then the eggs were inspected again and found not to pass inspection. Ordinarily eggs are inspected where they are graded, and are not re-inspected, even if they are sold to another grader. Mr Hudson found it suspicious that eggs were graded by federal inspectors at Burnbrae’s plant, found to pass inspection, and then inexplicably re-graded by federal inspectors at Sweda’s plant, and found to not pass inspection. He suspects the shipments were tampered with by Sweda, but he has no evidence, other than the circumstances he describes, to support his suspicion. I agree with Sweda that Mr Hudson’s suspicion, and the total circumstances, would not be a basis for the court to conclude that Sweda had tampered with the egg shipments. I conclude, however, that the evidence supporting Sweda’s claims respecting these shipments are of no greater strength than Mr Hudson’s opinion, and are not a basis for concluding that Burnbrae intentionally tampered with the shipments.

(2) Mary Jean McFall

[173] In cross examination, Ms McFall confirms that she was an employee of or outside counsel for Burnbrae at all times material to the proceeding. She also confirms that she was an elected director of EFO from 1998-2011.[^75] She said that she stepped down because she felt she had been doing it long enough and it was very time-consuming. Directors are elected regionally by egg producers. Ms McFall advised that she had been elected by acclamation for most or all of her tenure on the board. Ms McFall was not asked any questions about the impugned invoices from EFO in around 2003 and 2005. She was not asked about any conflicts of interest she had during her tenure on the board. She was not asked about her knowledge or participation in EFO affairs, either in general or with particular reference to the issues in this proceeding.

[174] Ms McFall was questioned about some of the impugned emails. Generally, she had no knowledge of them, not having been a party to any of them, and not having been referenced in them. She was asked about the email in which Burnbrae and L.H. Gray apparently discussed whether L.H. Gray would be willing to purchase some specialty eggs if Burnbrae agreed to buy Van Aert’s specialty eggs. Ms McFall stated that it would be reasonable and common enough to determine whether one had a market for specialty eggs before agreeing to buy them.[^76] She was not challenged on this evidence.

(f) Summary

[175] Most of these examinations produced nothing that is material to the claims as against Burnbrae. To the extent that the evidence does bear on the issues, it largely supports Burnbrae. Mr Van Aert denies that he was motivated to leave Sweda because of Burnbrae. He was unhappy, and eventually very unhappy with Sweda, and so he stopped doing business with it. Mr Embury was not persuaded to leave Sweda by Burnbrae. Rather, he was persuaded by Sweda to perhaps leave Burnbrae. He gave Sweda a try, decided it was not worth switching, and so did not do so. Ms Pilgrim, the witness most sympathetic to Sweda, indicated unhappiness with EFO, and gave reasons for that unhappiness. She did not link any of this to some conspiracy against Sweda by Burnbrae or L.H. Gray, but rather to Mr Pelissero’s management style, and a failure of the EFO board to put Mr Pelissero “on a short leash”.

[176] There is no reason to suppose that the more than 90 other proposed Sweda witnesses would be more helpful to Sweda’s case.

7. Other Allegations in the Fresh Statement of Claim

[177] My analysis of Sweda’s claims and the evidentiary record is based on my summary of the claims described at the outset of these reasons. I review the allegations against Burnbrae in the main body of the Fresh Statement of Claim here, to ensure that no aspect of Sweda’s claims has been overlooked.

[178] In paragraph 14, Sweda alleges that:

[f]rom the beginning of these proceedings… Burnbrae [has] been made privy to details respecting this action, including settlement strategies of EFO and Pelissero, through EFO statements to producers, representatives sitting on the EFO board, and relationships with the EFO board Chair, Carolynne Griffith, and other board members.

No particulars are given of the “details” or “settlement strategies”. These allegations are repeated in paragraph 59 and one particular is provided: based on an internal L.H. Gray email, it is clear that L.H. Gray was aware that EFO would not allow a sale of quota by Sweda to “go through” (that is, be approved) unless Sweda settled the lawsuit. No particulars are provided that implicate Burnbrae. No allegations are made linking these alleged facts to any of the causes of action. No evidence is led on the motion to support any of these allegations.

[179] In paragraph 17, Sweda alleges that it:

did not discover and could not discover through the exercise of reasonable diligence, the existence of the claims sued upon until recently, because the Defendants and their co-conspirators actively, intentionally concealed the existence of the combination and conspiracy from the Plaintiffs and others and only the release of documents by a whistleblower related to [L.H. Gray] allowed the Plaintiffs to become aware of the Defendants conduct.

The “whistleblower” is Mr Bourdeau. From this pleading it may be inferred that the documents provided by Mr Bourdeau to Sweda enabled Sweda to become aware of Burnbrae’s impugned conduct. As summarized above, the only documents placed before the court on this motion that originated from Mr Bourdeau that could be read to implicate Burnbrae do not establish Sweda’s allegations against Burnbrae.

[180] In paragraphs 21 to 42, Sweda sets out allegations concerning EFO’s decision to impose levies on certain egg producers in 2005. In summary, Sweda alleges that these levies were illegal and imposed in bad faith for the purpose of damaging Sweda and its relations with its producers.

[181] In paragraph 26, Sweda alleges that “[t]he decision to issue letters and invoices to egg suppliers of [Sweda] was solely that of Pelissero, and without prior knowledge or approval of [EFO’s] board of directors”. In paragraph 27, Sweda alleges that “[t]he decision to issue letters and invoices to egg suppliers of [Sweda] was initiated following suggestions from… Burnbrae that Sweda’s rates of “cracks”, “rejects”, and “short and broken” was probably too high. There was no evidence on the motion that Burnbrae made the alleged “suggestions”. There was no evidence or legal argument that it would have been wrongful for Burnbrae to make the alleged “suggestions” to persuade EFO to investigate.

[182] In paragraph 41, Sweda alleges that “[p]rior to the issuance of the letters and invoices, agents for… [Burnbrae] were made privy to the investigation involving [Sweda], including details respecting the names of egg producers who would be sent letters and invoices”. There was no evidence on the motion in support of this allegation. There was no evidence or argument on the motion that it would have been illegal for EFO to inform Burnbrae of the results of the investigation and its intended course of action as a result.

[183] In paragraph 42, Sweda alleges:

At the same time [EFO] and Pelissero were engaged in investigating [Sweda] and issuing letters and invoices to suppliers of [Sweda]… Burnbrae and L.H. Gray were engaged in soliciting egg supply agreements with said suppliers. In a coordinated effort, [Burnbrae] contacted egg producers East of Toronto, and [L.H. Gray] contacted egg producers West of Toronto.

There was no evidence that Burnbrae was soliciting egg supply agreements with Sweda suppliers at this time. There is no evidence that Burnbrae was “coordinating” supplier solicitations with L.H. Gray at this time. There is no evidence that Burnbrae contacted egg producers west of Toronto or refrained from contacting egg producers east of Toronto.

[184] In respect to all of these allegations, there is no evidence that Sweda lost a single supplier during this period, that it lost a supplier because of the levies issued by EFO, or that it lost any egg producers to Burnbrae or as a result of anything done by Burnbrae.

[185] In paragraphs 94 and 95, Sweda alleges that certain defendants, including Burnbrae, “interfered with the business and contractual relations between [Sweda] and Eggland’s Best Inc. and Hartman Canada Inc. No particulars are provided of any conduct by Burnbrae in respect to these allegations. In paragraph 95, Sweda pleads that “as a result of the undue influence by one or more of [several defendants including Burnbrae], Hartman temporarily stopped supplying [Sweda] with cartons, thus causing [Sweda] to be unable to supply eggs to its various customers”. There are no particulars of what Burnbrae did that would be “undue influence”. There are no particulars of how long the carton supply was interrupted, or any orders of eggs that Sweda could not supply as a result.

[186] In paragraph 132, Sweda alleges it “lost egg supplies totaling at least 2,590,000 eggs per week” as a result of the alleged wrongful conduct of Burnbrae and others. No time period is provided for this loss of supply. No evidence was presented on this motion to substantiate this claim.

[187] Also in paragraph 132, Sweda alleges that “[a]s a direct result of not having a sufficient supply of eggs, [Sweda] have lost numerous accounts with many of their customers….” No evidence has been provided to substantiate this claim. Not a single example was provided where failure by Burnbrae to supply marketable eggs to Sweda resulted in Sweda not being able to supply one of its customers. Not a single example was provided of a customer that ceased doing business with Sweda because Sweda failed to deliver a promised supply of eggs.

[188] In paragraph 133, Sweda repeats general allegations of misuse of confidential information, conspiracy to injure for the purpose of solidifying a monopoly, misuse of confidential information to interfere with contractual relations between Sweda and its customers and producers, and intentional interference with Sweda’s business and contractual relationships for the purpose of injuring Sweda, solidifying the collective egg monopoly, and fixing prices. Again, no particulars are provided. These allegations are partially repeated again in paragraph 140, again without particulars.

[189] In paragraph 148, Sweda claims, in the alternative to its other tort claims, that “the Defendants” are liable to Sweda for “negligence” arising in connection with “the various duties owed to [Sweda]. Previously, Sweda alleged (a) that Burnbrae (among others) owed a duty of care to Sweda in its supply of eggs to Sweda; and (b) that Burnbrae owed various duties to Sweda, contractually and at common law, in connection with the abortive transaction to purchase Sweda. No other duties that could found a cause of action in negligence are particularized in the claim.

8. Post-Hearing Submissions

(a) Unsolicited Submissions in November 2013

[190] This motion was heard on October 9, 2013, at which time I had been given to understand (not by counsel on this motion) that the decision of the Supreme Court of Canada in Hryniak could be released imminently. I invited counsel to send me further written submissions about the effect of the Supreme Court’s decision in Hryniak if it was released while my decision was under reserve.

[191] On November 26, 2013, Sweda’s counsel wrote to me stating that “[t]he Plaintiffs would, however, like to accept your invitation to provide further submissions, although not with respect to the Supreme Court of Canada Combined Air case.” The letter then went on to address several issues related to the motion.

[192] This was improper. I did not issue a general invitation to send me further written submissions. As in all matters that come before a judge, the parties are to present their evidence and arguments at the hearing. Further submissions should not be provided, except with the invitation or permission of the judge.

[193] Sometimes, matters arise following a hearing that ought to be brought to the attention of the judge. The appeal courts may deliver a pertinent judgment. Or counsel may discover an authority that ought to have been bought to the judge’s attention at the hearing. There are clear protocols for these situations. If all counsel agree, then it is permissible to bring the pertinent authority to the attention of the judge. This should be done without argument. If counsel wish to make submissions respecting the new authority, they should request the judge’s permission for these submissions. If all counsel agree that submissions are in order, it would be a rare case where the judge would refuse, but it is still up to the judge to decide whether he will consider further submissions after the hearing has been concluded.

[194] In other situations, new facts might come to light. Again, if there is a development that all counsel agree should be brought to the attention of the judge, a letter approved by all counsel may be sent to the judge. If counsel do not agree on a letter, or do not agree that the matter should be brought to the attention of the judge, then it is necessary to obtain permission from the judge before forwarding the new materials. Alternatively, there is a well prescribed process for reopening the evidence: a motion to adduce fresh evidence.[^77]

[195] In respect to the additional submissions from Sweda, had I been asked in advance, I would have permitted counsel to provide me with the decision of Lauwers J. in Farooq et al. v. Michelli et al., even though this case was available at the time of the hearing before me and ought to have been raised then if it was thought material to the issues before me. After having read Farooq, I would not have called upon counsel to provide written submissions: the import of Farooq for the issues before me is clear on a reading of the case.

[196] Had I been asked in advance, I would not have permitted Sweda to place before me evidence of materials filed on a subsequent motion in this case. At the time of the motion before me, L.H. Gray had an outstanding motion for leave to appeal the summary judgment decision of C.J. Brown J. Subsequently, L.H. Gray moved to adjourn the hearing of that motion until after I release this decision. In support of that motion, junior counsel for L.H. Gray swore an affidavit to the effect that my decision would be “instructive” to the court deciding the motion for leave to appeal from C.J. Brown J., and that, if I grant summary judgment (as I have done), this “would be a conflicting decision” to that of C.J. Brown J.

[197] The opinion of junior counsel as to the potential “instructive” value of my decision, or her speculations as to whether my decision may conflict with that of C.J. Brown J., are of utterly no moment on this motion, and should not have been put before me. For what it is worth, I drafted the portion of these reasons distinguishing my decision from that of C.J. Brown J. before I received the November 19th letter from Sweda’s counsel. I say here, after having read counsel’s letter: C.J. Brown decided the motion before her on the basis of her analysis of the case as against L.H. Gray, on the record before her. I have decided the motion before me on the basis of my analysis of the case against Burnbrae, on the record before me.

[198] The other submissions made by Sweda’s counsel in the November 19th letter are matters which were raised at the motion before me and should not have been argued again in written submissions. Having said all of this, since Burnbrae has responded to Sweda’s unsolicited written submissions, I deal with the arguments as follows:

(a) The effect of Farooq v. Micelli [submission #1]: Sweda’s counsel says this case stands for the proposition that it is generally impermissible to bring two motions for summary judgment in the same case, unless there has been a “change of circumstances”. Farooq v. Micelli addresses situations where the same defendant brings serial motions for summary judgment. It says nothing about cases where different defendants bring their own, separate, motions for summary judgment. There is no bar to the latter, nor has any authority been provided suggesting otherwise. One defendant may move early in a proceeding on the basis of a limitations issue, and another move later, on a different basis.[^78] This is not just permitted; it happens frequently. As a matter of judicial economy, of course, related motions ought to be brought at the same time.[^79] I raised this during the hearing before me: why had the parties not saved a lot of time and effort and brought both motions for summary judgment at the same time before the same court? Mr McCutcheon advised that both motions had been contemplated at the time that the parties appeared at motions scheduling court before Low J., and, based on the submissions and circumstances at the time, it was determined that it would take longer to book dates to hear the motions together than to schedule them separately. Low J. fixed the dates for both motions. During oral argument, counsel for Sweda did not respond to these submissions or say anything to the contrary. The time for raising this scheduling concern was (a) before Low J., when the matters were scheduled; or (b) before me at the hearing of October 9th. It is not proper to raise the issue anew, after the hearing. And the decision in Farooq has nothing to do with this issue.

(b) The effect of Farooq v. Micelli [submission #2]: Sweda’s counsel argues that Lauwers J. “determines that with respect to a conspiracy claim this is not a case that can be decided without the forensic machinery of a trial” (the quotation is from counsel’s letter, not the decision of Lauwers J.). This quotation from the decision is an exact quotation from paragraph 15 of the decision, with the words “with respect to a conspiracy claim” added. This mischaracterizes the decision. After reviewing the allegations and evidence in the case, Lauwers J. concludes that “this is not a case” for summary judgment. By “this… case” he is referring to the case before him, and not all conspiracy cases. This is manifestly clear, from the context of the decision and the actual language used by Lauwers J. There are cases where conspiracy claims have been dismissed on motions for summary judgment, and Lauwers J. was not purporting to cast those decisions into doubt.[^80]

(c) Effect of the Decision of C.J. Brown J.: Sweda argues that C.J. Brown J. decided that “the Defendants… have not provided full disclosure”. Sweda argues that Burnbrae are among “the Defendants” and thus there is a prior judicial determination that Burnbrae has not fulfilled its production obligations. Burnbrae did not file materials on the motion brought by L.H. Gray, and no relief was sought by or against Burnbrae on that motion. The issue of the state of Burnbrae’s disclosure was not before C.J. Brown J. On a fair reading of C.J. Brown J.’s reasons, Her Honour was commenting on the state of L.H. Gray’s disclosure, L.H. Gray being “the defendants” moving before her. Indeed, Her Honour defines “the defendants” to mean L.H. Gray & Son Limited and William Harding Gray” in paragraph 1 of her decision.

(d) Evidence of Scott Brookshaw: Sweda argues as follows: Burnbrae “included in their materials the affidavit of Scott Brookshaw from the L.H. Gray summary judgment motion. On Cross examination Mr Brookshaw admitted that the grading data, CFIA audits, internal audits and contracts with customers were all relevant to the conspirators’ defences.” This argument is made by Mr Jackson at paragraph 129 of his affidavit, and ought not to have been repeated in unsolicited submissions delivered after the hearing of the motion.

[199] In sum, aside from the legal argument respecting Farooq v. Micelli, the written submissions from Sweda were improper and, for the most part, trod ground already covered at the motion for summary judgment. Counsel often have things they wished they had said at a hearing, which come to them hours, days, or even months later. When counsel receives an adverse decision, frequently counsel have more or different things they wish they had said to the judge. That is not how the process works. The process is not reiterative. But for counsel’s submission that Lauwers J. had ruled that summary judgment is not available to a conspiracy case, I would have been minded to refuse to consider the unsolicited written submissions. However, given that argument, I felt duty-bound to review the case.

(b) Solicited Submissions in January 2014

[200] As noted above, following Hryniak I solicited further written submissions on the effect of Hryniak on this motion. I received and considered written submissions from both sides in January 2014.

9. Conclusion

[201] The plaintiff who treats a defence motion for summary judgment as a speed bump on the long highway to trial risks crashing its case in the deep ditch of dismissal. So it is for Sweda here.

[202] Sweda had to put its best foot forward. It has not. Rather, it relies on isolated pieces of evidence that would not lead the court to draw inferences that there was a conspiracy between Burnbrae and others. Rather, Burnbrae was a determined competitor of Sweda’s.

[203] Sweda has not proved those aspects of its claim within its own knowledge. It has not shown that it was damaged by specific events complained of in the claim. It has not shown a decline in its business fortunes that explains its decision to close its core business and sell assets. Through its witnesses on this motion, Sweda has failed to show that Burnbrae acted inappropriately in respect to Sweda’s producers or customers. Sweda has shown that it received some substandard deliveries from Burnbrae in 2008-09, but it has not shown that Sweda lost a single sale or suffered any damage as a result. It has not shown a conspiracy involving Burnbrae. There is “no reason to think better evidence would be available at trial”.[^81]

[204] Sweda has provided no expert evidence to put its case into context, or to provide analysis necessary to make out the claims of anti-competitive conduct over a ten year period. It has not provided legal analysis and industry evidence to place the activities of Burnbrae and itself within the context of a supply managed industry.

[205] It would be a grave injustice to Burnbrae to require it to continue its defence of these sprawling, speculative claims, to produce the vast quantity of documents Sweda asserts it needs, and to submit to a trial at which Sweda proposes to call upwards of 100 witnesses.

[206] On a motion for summary judgment, a responding party must lead trumps or risk losing. Sweda did not lead trumps. It tried a deep finesse. The finesse failed. And now Sweda has no hand. Its case is dismissed as against Burnbrae.

10. Order and Costs

[207] The motion is granted and the action is dismissed as against Burnbrae Farms Limited, Burnbrae Holdings Inc. and Maple Lynn Foods Limited. Sweda (jointly and severally) shall pay Burnbrae’s costs of the action forthwith in an amount to be agreed. There shall be no costs for or against the other defendants.

[208] If costs are not agreed, then Burnbrae shall provide written submissions and its bill of costs by March 14, 2014. Sweda shall provide responding submissions by March 28, 2014. There shall be no reply submissions. These dates may be varied by consent between counsel provided that all costs submissions are delivered to me no later than April 30, 2014.

[209] Judgment accordingly.

D.L. Corbett J.

Date: February 24, 2014

[^1]: “Burnbrae” includes Burnbrae Farms Ltd., Maple Lynn Foods Limited and Burnbrae Holdings Ltd.

[^2]: “Sweda” includes the three plaintiffs: Sweda Farms Ltd., Best Choice Eggs Ltd. and Tilia Transport Inc.

[^3]: Sweda has terminated its commercial egg business. It has some residual operations that are not material to this motion.

[^4]: “L.H. Gray” includes L.H. Gray & Son Ltd. and its President, William Harding Gray.

[^5]: “EFO” includes Egg Farmers of Ontario and its General Manager, Harry Pelissero.

[^6]: References to Sweda’s pleadings are to the Fresh Statement of Claim, which I refer to by name or as “the claim”.

[^7]: Sweda also claims for Competition Act costs, ordinary legal costs, aggravated and punitive damages, interest, and “[s]uch other relief as this Honourable Court deems just” (paras. 1(j) to (p)).

[^8]: Sweda Farms Ltd. v. Egg Farmers of Ontario et al., sub nom. Sweda Farms Ltd. et al. v. L.H. Gray & Son Limited et al., 2013 ONSC 4195, para. 39.

[^9]: ibid., para. 40.

[^10]: 2014 SCC 7.

[^11]: 2011 ONCA 764, 2011 CarswellOnt 13515 (Ont. C.A.).

[^12]: I am not suggesting that a court should defer decision whenever there is a case pending in a higher court that could affect the outcome. Here, the balance between the prejudice of an anticipated short delay and the potential costs and delay if this motion was decided on an outdated test, led me to conclude that this was a rare case when it was best to wait.

[^13]: Combined Air Mechanical Services v. Flesch, 2011 ONCA 764, 2011 CarswellOnt 13515 (C.A.) at paras. 50-51; Rule 20.04(2).

[^14]: ibid., at para 51; Precious Metal Capital Corp. v. Smith, 2012 CarswellOnt 5603 (C.A.) at paras. 10 and 12; leave to appeal refused 2012 CarswellOnt 14533 (S.C.C.).

[^15]: New Solutions Extrusion Corp. v. Gauthier, 2010 CarswellOnt 913 (S.C.J.); aff’d 2010 CarswellOnt 2966 (C.A.).

[^16]: Combined Air., supra., at para 56; Bhakhri, v. Valentin, 2012 CarswellOnt 6667 (S.C.J.), para. 7; Pizza Pizza v. Gillespie (1990), 1990 4023 (ON SC), O.J. No. 2011.

[^17]: Rule 20.02(2); Bhakhri v. Valentin, ibid., para. 7.

[^18]: Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co., 1996 7979 (ONSC)(Gen.Div.), para. 24; Dawson v. Rexcraft Storage and Warehouse Inc., 1998 4831 (ON CA), 1998 CarswellOnt 3202 (C.A.).

[^19]: I am not making any findings about the strength of the case as against L.H. Gray. I identify evidence that Sweda says it has against L.H. Gray uncritically, and assess it at its highest possible probative value for Sweda in its case against Burnbrae to decide whether there is a case for trial as against Burnbrae. Thus I am assuming, not finding, various facts asserted against L.H. Gray.

[^20]: Hryniak, supra., para. 4.

[^21]: Hryniak, supra., paras. 66-68, 76-78.

[^22]: To the extent that I have construed Her Honour’s findings too narrowly, and Her Honour’s decision implicitly concludes that a trial is required to decide whether there was a conspiracy between L.H. Gray and Burnbrae, I must respectfully depart from this conclusion.

[^23]: Sweda Factum, para. 145.

[^24]: Sweda Factum, para.146.

[^25]: In paragraph 63 of the Fresh Statement of Claim, Sweda alleges that Burnbrae breached the confidentiality agreement by telling L.H. Gray about the proposed transaction. Obviously L.H. Gray found out about the transaction somehow, because it became a potential co-purchaser and itself signed the confidentiality agreement. No evidence was led on the motion about this alleged breach of the confidentiality agreement, or how it could possibly be a basis for a cause of action when L.H. Gray was brought into the negotiations with the consent and agreement of Sweda.

[^26]: Fresh Statement of Claim, para. 66.

[^27]: International Corona Resources Ltd. v. LAC Minerals Ltd., 1989 34 (SCC), 1989 CarswellOnt 126 (S.C.C.).

[^28]: Mr Klei’s Estate attended on this motion, but did not file evidence or present argument. My statement here that “there is some evidence to support these allegations” is not a finding against the Klei Estate. It is apparent that there is another side to the story involving Mr Klei. He got wind of the proposed sale of Sweda’s business to L.H. Gray and Burnbrae. Implicit in the transaction was eventual closure of Sweda’s operations, resulting in termination of employment for many long-time loyal Sweda employees, he among them. Mr Klei also believed that he had invested money in Sweda, and that his interests were being overlooked in the proposed sale transaction. I make no findings about these matters, one way or another.

[^29]: Lineal Group Inc. v. Atlantis Canadian Distributors Inc., 1998 CarswellOnt (C.A.) at paras. 6-7; Correia v. Canac Kitchens, 2008 ONCA 506, 2008 CarswellOnt 3712 (C.A.) at para. 100.

[^30]: Browne v, Dunn (1893), 1893 65 (FOREP), 6 R. 67 (H.L.).

[^31]: It may be, for example, that a financial incentive would have been a breach of the pricing mandated by EFO. If this is the argument, it was not put expressly, and no reference was provided to the EFO requirements that would have precluded such an incentive. If the argument is that the incentive was some form of anti-competitive behavior, this is not explained or particularized. The court should not have to guess as to why an alleged fact might be material to a portion of the claims.

[^32]: There was some suggestion in the examination of Mr Van Aert that Sweda takes the position that Van Aert did breach its contract with Sweda. This, apparently, turns on whether Van Aert’s supply agreement ran for two years from the date of the contract or the date of first supply, a basis of litigation between Sweda and Van Aert. However, the record is clear that Van Aert was proceeding on the basis that it did not switch until it believed it had fulfilled its contract with Sweda, and there is no evidence that Burnbrae had any involvement in Van Aert’s decision as to when it believed its contract with Sweda was concluded.

[^33]: Cement Lafarge v. B.C. Lightweight Aggregate, 1983 23 (SCC), [1983] 1 S.C.R. 452 at paras. 33-34; Intelllibox v. Intermec Technologies Canada Ltd., 2011 CarswellOnt 12099 (S.C.J.). See also H.A. Imports of Canada Ltd. v. General Mills, Inc., et al. (1983), 1983 1722 (ON SC), 42 O.R. (2d) 645.

[^34]: Harris v. GlaxoSmithKline Inc., 2010 ONSC 2326, para. 85.

[^35]: Intellibox, supra., para. 37; R.(N.) v. Children’s Aid Society of Toronto, 2011 CarswellOnt 6198, aff’d. 2012 CarswellOnt 6092 (C.A.).

[^36]: In paragraph 97(a) it is alleged that this took place in 2004. Elsewhere in the pleadings it is alleged to have been in 2005. In the evidence of Ms Pilgrim (discussed below), objectionable levies are stated to have happened in 2003 and 2005.

[^37]: Although it is not entirely clear, it seems from the pleading and the record that these egg shipments were in 2008 and 2009.

[^38]: Mr Jackson incorporates by reference his affidavits filed on the previous summary judgment motion brought by L.H. Gray. I have reviewed those materials, but do not analyse them paragraph by paragraph here. The earlier affidavits repeat materials otherwise in evidence on this motion, and are focused on the claims against L.H. Gray. This is reflected in Sweda’s factum, which does not reference these earlier affidavits.

[^39]: Jackson cross-examination, August 26, 2013, QQ 55-58.

[^40]: Later in the affidavit Mr Jackson refers to some emails which, Sweda says, establish Burnbrae’s role. These documents are addressed below, when I review that portion of Sweda’s evidence.

[^41]: When asked for documents to support this assertion, Mr Jackson responded that there are emails (Jackson cross-examination, August 26, 2013, Q. 72).

[^42]: Later in the affidavit there are references to two specific producer visits. There is no mention of EFO in connection with those visits. The visits themselves are addressed below when reviewing that later part of the evidence.

[^43]: As reflected in the testimony of Ms Pilgrim, discussed below, Sweda’s President could not have considered this too much of a problem in 2004, when he stood, unsuccessfully, for election to the board of directors.

[^44]: Burnbrae’s efforts to contract with two Sweda suppliers are addressed later in the affidavit, and later in these reasons.

[^45]: Claims against EFO and Mr Pelissero were commenced in May, 2005. In June, 2009, a separate claim was commenced against Burnbrae and L.H. Gray and other defendants. The two actions were consolidated by court order in 2010, and the Fresh Statement of Claim was delivered after that.

[^46]: Two of these farmers are discussed in more detail later in the affidavit and that evidence is addressed later in these reasons.

[^47]: This phrase usually connotes obstruction of justice: see Criminal Code of Canada, s.139(3).

[^48]: Sweda Farms Ltd.et al. v. Egg Farmers of Ontario et al., 2011 ONSC 3650 (finding of contempt), aff’d. 2012 ONCA 337; 2012 ONSC 2240 (penalty). In upholding the finding of contempt, the Court of Appeal stated: “the fact that the terms of the order were later set aside because of the appellant’s [Mr Bourdeau’s] incorrect statements in an affidavit, did not excuse him from complying with the order while it was in force” (para. 3).

[^49]: The only attempt to make any sense of these materials on this motion was during Mr McCutcheon’s cross examination of Mr Jackson. As emerged during that questioning, these records do not establish a pattern – they are unorganized records of specific events, only some of which involve Burnbrae.

[^50]: Later, at paragraph 124, Mr Jackson says that egg detentions “were of a constant and significant amount”. This will not do on a motion such as this. How often were Burnbrae deliveries to Sweda detained? What, in each instance, was the consequence: which customers did not receive shipments they ought to have received from Sweda? What was the consequence for the relationship (as evidenced by subsequent business dealings between Sweda and that customer)?

[^51]: Export and Import Controls Bureau of the Canadian Department of Foreign Affairs.

[^52]: Not only were these things not proved by Sweda, Sweda refused to provide its financial statements during cross-examinations on the basis that they were not relevant to the motion.

[^53]: Examination of Les Mann dated July 22, 2013 (WalMart); examination of Andre Chow-Leong dated July 22, 2013 (Loblaws).

[^54]: In its factum, Sweda argued that these cross-examinations establish that retailers rely upon CFIA inspections. That suggestion is agreed by the witnesses in response to leading questions, but in the context that store workers would seek credits from egg delivery drivers for returns, and returns would be made by customers if they found broken eggs in their cartons of eggs. I took from the retailers’ evidence they know that eggs are inspected by CFIA, and they do not themselves go through systematic inspections of egg deliveries. When there are returns, retailers seek credits, whether they discover the returns or they come from customers. I do not see how this evidence establishes anything relevant to these proceedings.

[^55]: Examination of Luke Van Aert, July 23, 2013, Q. 134.

[^56]: ibid., Q. 180.

[^57]: ibid., QQ. 182-186.

[^58]: ibid., QQ 213-214.

[^59]: ibid., Q. 291.

[^60]: ibid., Q. 345.

[^61]: Examination of Elwyn Embury, September 6, 2013, Q.130, 219-225.

[^62]: ibid., Q. 153.

[^63]: ibid., QQ. 177-183.

[^64]: Examination of Dawn Elizabeth Pilgrim, August 8, 2013, Q.43.

[^65]: ibid., QQ 308, 441-442.

[^66]: ibid., QQ 111-129.

[^67]: ibid., QQ 132-141.

[^68]: ibid., QQ 162-285.

[^69]: Cross Examination of Joseph Edward Hudson, July 18, 2013, Q. 363.

[^70]: ibid., QQ 466-485.

[^71]: ibid., QQ 284-286.

[^72]: ibid., QQ 607-609.

[^73]: ibid., Q. 611. From the context it is clear Mr Hudson means that when a shipment of eggs is handled, some eggs will get cracked – not that cracks are added to every egg whenever it is touched.

[^74]: ibid., QQ 697-698.

[^75]: Cross examination of Mary Jean McFall, August 23, 2013, QQ 59-61.

[^76]: ibid., QQ 370-373.

[^77]: Following an inquiry from me, counsel for both sides confirmed that Burnbrae’s counsel was not consulted and had not consented to Sweda’s unsolicited written submissions.

[^78]: See, for example, 1413910 Ontario Inc. v. Select Restaurant Plaza Corp. (2005), 2005 63807 (ON SC), 75 O.R. (3d) 351 (C.A.).

[^79]: Section 138 of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that “[a]s far as possible, multiplicity of proceedings shall be avoided”.

[^80]: For example: New Solutions Extrusion Corp. v. Gauthier, 2010 CarswellOnt 913 (S.C.J.); Intellibox Concept Inc. v. Intermec Technologies Canada Ltd., 2011 CarswellOnt 12099 (S.C.J.), R.(N.) v. Children’s Aid Society of Toronto, 2011 CarswellOnt 6198, affd. 2012 CarswellOnt 6092 (C.A.).

[^81]: Hryniak, supra., at para. 58.