Executive Summary: Key Legal and Evidentiary Issues

• Dispute over whether the defendants properly fulfilled discovery undertakings, particularly the delivery of financial records and witness information
• Adequacy of disclosure concerning CREW’s Visa statements for specific months relevant to the parties’ financial dealings
• Sufficiency of the list of persons with knowledge of the facts, including their identification and contact details
• Content and quality of will-say statements for anticipated witnesses, and whether high-level or generic descriptions meet disclosure obligations
• Tension between efficient litigation under the Simplified Rules and the need for meaningful pre-trial disclosure to support a shareholder oppression and commercial misconduct case
• Costs entitlement on a straightforward procedural motion where one side has largely but not entirely complied with its undertakings

Background and parties

C.R.E.W. Construction Group Inc. (CREW) is a construction contractor operating in York Region. It was founded in 2012 by Cameron Brown and Kevin Shorter, who jointly operated the business until June 2019, when Mr. Brown either resigned or was locked out of the business. The breakdown in their business relationship led to litigation on both sides.
CREW commenced an action under the Simplified Rules in January 2020. In that action, CREW sues Mr. Brown, alleging that he engaged in several forms of misconduct while involved in the company. Mr. Brown responded with a counterclaim against CREW and Mr. Shorter, relying on the oppression remedy provisions under Ontario’s Business Corporations Act. Thus, the case combines elements of a commercial dispute and a shareholder-style oppression claim between former business principals.

Claims and counterclaims in the underlying litigation

On the main claim, CREW alleges that Mr. Brown misused company resources and opportunities for his own benefit. The allegations include misappropriating CREW’s supplies and labour for the construction of his personal residence, diverting cash payments made by clients, converting CREW’s tools, and improperly soliciting CREW’s customers after the breakdown of the relationship. These claims are framed as civil wrongs causing financial loss to the company.
In response, Mr. Brown’s counterclaim is brought under the oppression remedy provisions of the Business Corporations Act (Ontario). In an oppression claim, a shareholder or stakeholder alleges that the conduct of the company or its controllers is oppressive, unfairly prejudicial, or unfairly disregards their interests. Here, Mr. Brown alleges that CREW and Mr. Shorter have conducted themselves in a manner that warrants relief under the statute, effectively turning the case into a two-way dispute about control, fairness, and past conduct in the business.

Procedural history leading to the motion

The action proceeded slowly. Both the claim and counterclaim had been administratively dismissed at different points, but a telephone case conference in November 2025 resulted in those dismissals being set aside. During that case conference, Mr. Brown’s counsel indicated an intention to bring a motion compelling further answers to undertakings arising from the examination for discovery of Mr. Shorter. The court granted leave for the motion to proceed in writing, and a timetable was set.
Mr. Shorter had been examined for discovery in May 2021 and gave 59 undertakings. Over the next several years, he made efforts to respond, but by January 2026, Mr. Brown maintained that three undertakings remained outstanding. That dispute over alleged non-compliance with discovery obligations is what came before Justice Boswell on this motion.

The undertakings in dispute

Mr. Brown’s motion identified three specific undertakings said to be unresolved. First, he sought copies of CREW’s Visa statements for December 2019 and February 2021. These financial records were potentially relevant to the allegations concerning use and misappropriation of company funds and expenses.
Second, he asked for a list of parties who may have knowledge of the events at issue, including persons who could provide relevant information about the business relationship, alleged misappropriations, and corporate conduct. This is a standard form of undertaking designed to ensure that each side understands who might be called as a witness and what knowledge those individuals may have.
Third, and most significantly for the motion, he sought will-say statements for any witnesses whom CREW and Mr. Shorter expected to call at trial. Will-say statements are intended to summarize the anticipated evidence of non-party witnesses, thereby filling the disclosure gap where full examinations for discovery of every potential witness are not available.

Findings on the financial and witness-identification undertakings

CREW and Mr. Shorter responded to the motion with materials including an affidavit from their counsel’s legal assistant, attaching copies of relevant correspondence. The record showed that Ms. Hsia, counsel for CREW and Mr. Shorter, had emailed the Visa statements for the requested months to Mr. Brown’s counsel, and indicated that these had been “repeatedly provided earlier.” Evidence was also filed of a further email attaching a list of potential witnesses along with what were characterized as will-say statements.
On this basis, the court found that two of the three disputed undertakings had been satisfied. The Visa statements for December 2019 and February 2021 had in fact been delivered, fulfilling the financial disclosure undertaking. Likewise, a list of persons with knowledge of the events, along with contact information, had been provided. As a result, the only remaining live issue on the motion was whether the will-say material met the standard required to discharge the third undertaking.

The legal standard for proper will-say statements

Justice Boswell focused on what constitutes a “proper” will-say statement. The decision draws on the Supreme Court of Canada’s comments in R. v. Stinchcombe, which stress that witness summaries serve an important disclosure function. Parties are generally not entitled to examine every potential witness prior to trial; instead, they are limited to examining parties and corporate representatives. Will-say statements help fill that gap by providing meaningful notice of the substance of anticipated evidence from other witnesses.
The court also referenced case law cautioning that vague or generic descriptions are not enough. A will-say need not be exhaustive and may remain at a high level, but it must still give a concrete summary of the witness’s expected testimony. A mere list of topics or a conclusory statement that a witness will speak to the “allegations” is insufficient. The core requirement is that the opposing party be able to understand the case to be met, assess settlement positions, and prepare effectively for trial.

Application of the standard to the will-say evidence provided

The witness list produced by CREW and Mr. Shorter identified six potential witnesses: Jodie Shorter, Rick Landry, Bill Woods, Terry Andrews, Chris Neuendorf, and Allen Koroll. The undertaking as understood by the court, however, applied only in relation to those persons whom CREW and/or Mr. Shorter “expect to be a witness at trial,” not every possible witness in the abstract.
The court noted two main deficiencies. First, there was no indication as to which of the six individuals were actually expected to be called at trial, meaning the undertaking was not properly targeted to “anticipated” witnesses. Second, even for those where brief descriptions were given, the so-called will-say statements were too vague. For example, the statement for Jodie Shorter, CREW’s administrator, merely said that she would testify with respect to “the wrongdoings alleged in the Statement of Claim.” That one-line description was characterized as nothing more than a bald assertion that she would offer relevant evidence, which did not meet the disclosure function of a will-say.
For several other potential witnesses, the list contained only names and roles, without meaningful detail about the specific evidence they were expected to provide. This left Mr. Brown without a clear picture of what testimony he would face from these witnesses at trial. As a result, the court concluded that the will-say undertaking remained unsatisfied and that proper, substantive will-say statements were still required.

Order on the undertakings and costs outcome

In light of these findings, Justice Boswell ordered CREW and Mr. Shorter to comply fully with the undertaking relating to will-say statements. They were directed to provide proper will-say statements for each witness they actually expect to call at trial, within 30 days. These statements must give a meaningful summary of the anticipated evidence, going beyond generic assertions or topic lists, so that Mr. Brown can understand and prepare for the case he must meet.
On the issue of costs, the court recognized that this was a straightforward procedural motion and that modest costs were sought. Although CREW and Mr. Shorter had made reasonable efforts over several years to answer many undertakings, Mr. Brown was successful in demonstrating that at least one key undertaking remained outstanding. He was therefore presumptively entitled to his costs on a partial indemnity basis. Balancing these considerations, the court fixed costs of the motion at $1,000 all-inclusive, payable within 30 days. In effect, Cameron Brown emerged as the successful party on this undertakings motion, with a total monetary award consisting of a $1,000 costs order in his favour and no additional damages or monetary relief determined at this stage of the broader litigation.