Henry v. Chippewas of Kettle and Stony Point First Nation, 2026 ONSC 3741

CITATION: Henry v. Chippewas of Kettle and Stony Point First Nation, 2026 ONSC 3741

COURT FILE NO.: CV-23-89 (Sarnia)

DATE: 20260625

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Ryan Wayne Henry

Plaintiff

– and –

Chippewas of Kettle and Stony Point First Nation (Band 171) as represented by Chief Kimberly Bressette, Councillor Jack Brown, Councillor Liz Cloud, Councillor Stan Cloud, Councillor Marshall George, Councillor Vince George, Councillor Ron George, Councillor Melissa Monague, and Councillor Carmen Rogers in their official capacities

Defendant

Virginia Lomax and Alisa Lombard,

for the Plaintiff

Madeleine Brown, Jordan Sewell and Caitlyn Beresford, for the Defendant

HEARD: June 12, 2026

RULING ON MOTION

kalajdzic J.:

1The defendant moves for production of accounting records pursuant to a “best efforts” undertaking given by the plaintiff at his Examination for Discovery. The motion turns on the scope of the undertaking given, and specifically, what is meant by “books” in the context of record-keeping. In the alternative, the defendant seeks a further and better affidavit of documents and disclosure within 30 days.

2The plaintiff submits that he has fulfilled his undertaking and that he is not obligated to prepare documents that do not exist.

3For the reasons that follow, I grant the defendant’s motion and order the plaintiff to produce the revenue and expense records related to his commercial activities on Lot 14 from November 1, 2022 to the present. The plaintiff shall produce invoices for fuel deliveries and variety store goods, payment records, utility bills, and other overhead costs.

The Undertaking

4In this action, the plaintiff claims over $2 million in lost profits for interference with economic relations involving his gas station, 44 Fuel, and his variety store, 44 Variety. He operates those businesses on Lot 14 on the Kettle and Stony Point First Nation IR 44.

5At his Examination for Discovery in October 2024, the plaintiff confirmed that he personally maintains the accounting records for his business. The following questions were asked, and answers to undertaking provided:

Question

Answer

Qu. 4

Q. So – And what about an accounting of your books at this stage? You must have an accountant that works for you. [A. I do my own accounting.] Q. So in that case can we see your books? [A. We’ll make best efforts. Undertake to make best efforts to produce.]

Answer provided March 17, 2025: Undertakings ongoing. Updated Answer provided July 26, 2025: Best efforts have identified the following documents: SUPL0001 Payroll and weekly sales of 44 Variety. Employees names have been redacted. SUPPL0002 Payroll and weekly sales of 44 Fuel. Employees names have been redacted.

6On July 26, 2025, the plaintiff produced two spreadsheets in response to this undertaking. These records, however, are incomplete. They do not include key information such as cost of goods sold, details of key expenses, or complete dates. Some information (other than employees’ names) was redacted.

7In August 2025, plaintiff’s counsel advised that they would seek instructions to commission an expert accounting report. The plaintiff ultimately instructed them to do so, but to date, that report is not yet complete. In any event, the defendant submits that it is entitled to more than the expert analysis. The underlying source documents on which the expert report is based must be produced.

8On June 2, 2026, the plaintiff provided the defendant with preliminary draft income (revenue and expenses) sheets prepared for the expert’s analysis. These documents contain key information (such as cost of fuel) that the spreadsheets provided in July 2025 did not contain.

Legal Principles and Analysis

9The principles on an undertakings motion are well-established and were summarized by Centa J. in Métis National Council Secretariat Inc. v. Chartier, 2023 ONSC 5469, at paras. 8-12. In the case before me, most pertinent are the following principles:

a. Under r. 31.06(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, a person examined for discovery shall answer to the best of their knowledge, information and belief, any proper question that is relevant to any matter in issue in the action.

b. Evidence is relevant if, as a matter of common sense and human experience, it makes the existence of a fact in issue more or less likely. Relevance is assessed by reference to the material issues in a particular case, as defined by the pleadings.

c. The extent of discovery is not unlimited. The court has an obligation to keep discovery within reasonable and efficient bounds to avoid it becoming oppressive and uncontrollable.

d. In determining whether to require a party to answer a question or produce a document, the proportionality factors in r. 29.2.03 of the Rules must be considered.

10There is no question that the plaintiff’s accounting records are relevant to the proceeding. He must prove his damages, and the defendant is entitled to test that evidence.

11The plaintiff is not an accountant and does his own bookkeeping. He submits that he was asked to produce “accounting books” and he is not required to create GAAP-compliant books to fulfill his undertaking.

12I do not agree that the requested undertaking was to produce formal accounting books, such as ledgers and financial statements. The plaintiff advised defence counsel that he did not have formal books and then agreed to use best efforts to produce his own books. Even if not GAAP-compliant, records of his revenue and expenses are within his possession, power and control. He has provided them to his accounting expert. There is no meaningful difference between “books” and “records” in the context of the question asked and undertaking given.

13“Best efforts” requires that “a party will make a genuine and substantial search for the requested information and/or documents. It is not an undertaking that is taken lightly. A cursory inquiry is not good enough”: Praxy Cladding Corp. v. Stone Lamina Inc., 2024 ONSC 727, at para. 9.

14The plaintiff filed no evidence of his efforts to search for the requested documents. At some point prior to the preparation of the draft expert analysis, however, he was able to locate revenue and expense records. It is not unreasonable, therefore, for the plaintiff to produce them to the defendant.

15At the hearing, and for the first time, the plaintiff raised the issue of commercial prejudice should the source documents be disclosed. Because the defendant Band operates a competing gas station, the identity of the plaintiff’s suppliers, for example, is potentially commercially sensitive information. The plaintiff seeks leave to bring a motion for a protective order if disclosure is ordered.

16The defendant argues that to further delay production for an eleventh-hour motion for a protective order is to reward the plaintiff for his non-compliance with r. 31.06.

17The court has inherent jurisdiction, as well as jurisdiction under s. 137(2) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, and r. 30.11 of the Rules, to grant an order restricting the production of documents in circumstances where unlimited production will prejudice a party: BASF Canada Inc. v. Max Auto Supply (1986) Inc., [1999] O.J. No. 515 (Gen. Div.), at para. 15. An order restricting the access to and use of documents in a proceeding may be made if a party would risk serious financial harm should the information be available to a competitor: BASF, at para. 16.

18To be entitled to a restrictive order, the plaintiff will have to show that the risk of harm is real and substantial, not speculative. An adequate factual basis must be provided: Eisses v. CPL Systems Canada Inc., 2008 CanLII 1946 (Ont. S.C.), at para. 5.

19I cannot, of course, prejudge the merits of the plaintiff’s protective order motion. At the same time, I am concerned about the delay in the plaintiff’s productions to date. Consequently, I am granting the defendant’s motion subject to the terms below to ensure that meaningful production is made without further delay.

Disposition

20For the foregoing reasons, I order as follows:

a. The plaintiff shall comply with his undertaking and produce, by July 17, 2026, all records of revenues, costs of goods sold (including fuel), fixed costs and other overhead expenses, payroll and source documents, in respect of 44 Fuel and 44 Variety, for the period November 1, 2022, to June 1, 2026.

b. The plaintiff may redact the names of suppliers from these documents. This term is without prejudice to the plaintiff’s motion for a protective order.

c. The plaintiff shall bring his motion for a protective order no later than July 31, 2026. Should he fail to do so, or if the motion is denied, then unredacted accounting documents shall be produced no later than August 15, 2026 or within 15 days of the motion being denied, whichever date is later.

21The defendant is entitled to costs of the production motion. Counsel may speak to costs on the return of the motion to strike on October 19, 2026.

XXXXXXXXXXXXXXXXXXXX

Jasminka Kalajdzic

Justice

Released: June 25, 2026

CITATION: Henry v. Chippewas of Kettle and Stony Point First Nation, 2026 ONSC 3741

COURT FILE NO.: CV-23-89 (Sarnia)

DATE: 20260625

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Ryan Wayne Henry

– and –

Chippewas of Kettle and Stony Point First Nation (Band 171) as represented by Chief Kimberly Bressette, Councillor Jack Brown, Councillor Liz Cloud, Councillor Stan Cloud, Councillor Marshall George, Councillor Vince George, Councillor Ron George, Councillor Melissa Monague, and Councillor Carmen Rogers in their official capacities

Defendant