Court File and Parties
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: GARRY PRIEST TRUCKING LTD.; CARL PRIEST; PATRICIA PRIEST, Plaintiff AND: KEELE ACQUISITION LTD.; ROMEO DIBATTISTA JR. IN TRUST, Defendant
BEFORE: Koehnen J.
COUNSEL: Karen Zvulony for the plaintiffs Garry Priest Trucking Ltd. and Carl Priest Ma'anit Tzipora Zemel for the plaintiff Patricia Priest Jeffrey Kaufman and Bradley Adams for the defendants
HEARD: January 20, 2026
Endorsement
1The fundamental issue before me on this case conference is the adequacy of a will say statement delivered by the defendants for their proposed trial witness Vincent Ursini.
2The issue arose in the context of amendments to the statement of defence after 8 years, which amendments alleged new information from a new witness, Mr. Ursini. A dispute arose over how the plaintiffs could learn what Mr. Ursini would say at trial. The defendants initially took the position that the plaintiffs could have additional discovery of the defendants and ask them what Mr. Ursini would say. This is the common approach to take under the Rules. The plaintiffs wanted an examination of Mr. Ursini under Rule 31.10. That dispute appears to have been resolved at a case conference before McGraw AJ on terms pursuant to which all parties would be delivering will say statements of their witnesses which made a Rule 30.10 motion unnecessary.
3The defendants have now delivered a will say statement for Mr. Ursini. The plaintiffs submit that it is inadequate. I agree.
4One of the critical issues involving Mr. Urisini’s evidence is the content of his communications with the plaintiffs Carl and Patricia Priest. The will say statement at issue does not actually set out what Mr. Ursini will say at trial about those communications. Rather, it sets out a list of issues that Mr. Ursini will address at trial. By way of example, the will say statement says:
Mr. Ursini is expected to testify on the following:
- His involvement in drafting of the 2016 Agreement and the Agreement of Purchase and Sale for the Bertram property, including but not limited to:
e. his communications and discussions with Carl Priest and Patricia Priest.
- The December 16, 2016, signing meeting, including but not limited to:
g. his understanding that the parties were all in agreement with the terms and would be retaining lawyers to complete the closing of the Bertram Property;
- His interactions with Patricia Priest and his knowledge of her understanding of the 2016 Agreement, his involvement with Ms. Priest in the negotiation and execution meeting of the 2016 Agreement and APS, including but not limited:
a. he communicated with Ms. Priest before the meeting, during the meeting, and after the December 16, 2016, meeting;
b. her participation in the December 16, 2016, meeting by telephone;
c. he will provide evidence of the words and conduct of Patricia Priest in support of the defendants’ position that Carl Priest had implied or ostensible authority to sign on behalf of himself and his wife at the meeting to enter into the APS; and
d. he emailed her the executed copy of the 2016 agreement, including the APS, shortly after the meeting on December 16, 2016.
- His involvement in the post-execution implementation of the 2016 Agreement, including but not limited to:
b. he communicated with the parties, including Patricia Priest, and also communicated with the bank;
5The defendants rely on Taylor v. Zents,1 for the proposition that Mr. Ursini’s will say statement is sufficient. I disagree.
6In Taylor v. Zents, Casullo J. held that that Pursuant to r. 31.06(2) of the Rules of Civil Procedure, a party must, if asked, disclose a summary of the substance of their evidence. A long line of authority supports that proposition.2
7In Davies v. Clarington (Municipality),3 Lauwers J. held that “any such summary must contain a fair bit of detail addressing the normal journalistic questions related to the person and the relevant knowledge that he or she possesses, being: “who, what, where, when, why and how”.
8Indeed, the focus of the defendants argument was that the will say need not be a “transcript” of the evidence to be given at trial but must contain the “who, what, where, when, why and how”.
9Mr. Ursini’s will say falls far short of these principles.
10I start with the very name of the document. It is referred to commonly by counsel as a “will say” statement. The plain words of that expression indicate that the document is to reflect what the witness will say at trial. Mr. Ursini’s document, and especially the portions quoted above, does not do that, it merely sets out the issues about which he will testify. Similarly, a list of issues that Mr. Ursini will address is not a summary of the substance of his evidence.
11Nor does the list of issues in Mr. Ursini’s will say address the “who, what, where, when, why and how” of his evidence. As noted, the critical portion of the evidence referred to in the portions quoted above relates to conversations Mr. Ursini had with the plaintiffs. The will say addresses the “who” in the sense the it identifies that Mr. Ursini will testify about his conversations with the plaintiffs. The most critical element of that evidence is the “what” in the sense of what was said during those conversations. That is entirely missing from the will say.
12I appreciate that there is a certain historical school of thought that produced will says like Mr. Ursini’s. The time for those is long gone. Case law since the 1980s has called for a summary of the substance of the evidence, not a list of issues to be addressed.
13The purpose of discovery and will says in particular is to avoid trial by ambush and allow the opposing side to know meet the case it has to meet. Mr. Ursini’s will say is nothing but an artfully crafted document which prevents the plaintiffs from knowing the case they have to meet with respect to Mr. Ursini’s evidence.
14Finally, recall that the will say statement was proposed as a solution to a Rule 31.10 motion to discover a non-party witness. The plaintiffs were told that a Rule 31.10 motion was not necessary because a will say statement would be provided. On a Rule 31.10 examination, the plaintiff would, by way of example, be able to ask the witness about the details of any conversations he had with the plaintiffs. Even if the motion for non party discovery failed, the plaintiffs would be entitled to further examination for discovery of the defendants arising out of the amendments to the statement of defence. On any such examination, the plaintiffs could ask the defendants for an undertaking to provide Mr. Ursini’s knowledge about his conversations with the plaintiffs.
15Although a will say statement need not be a transcript of evidence in the sense of a witness being restricted to reading the will say at trial, it should disclose every substantial piece of information to which the witness will testify in examination in chief. That is what he will say. That is also the definition of summary: an account of the main points which omits minor details. Thus, for example, the fact that Mr. Ursini spoke with the plaintiffs on a cold day is likely to be a minor detail which can be omitted from the will say. A point of substance of the conversation that is relevant to the case cannot be omitted.
Date: January 26, 2026
Koehnen J.
Footnotes
- Taylor v. Zents, 2024 ONSC 166; aff’d at 2025 ONCA 662 without addressing the point.
- See for example: Dionisopoulos v. Provias, 1990 6642 (ON SC), [1990] O.J. No. 30, at para. 14; Blackmore v. Slot-All Ltd., released September 17, 1985, Ont.H.C.J. [summarized 1986 6256 (ON SC), 35 A.C.W.S. (2d) 144], where Steele J. stated that rule 31.06 should be given a broad interpretation to permit full and expeditious disclosure; Leerentveld v. McCulloch (1985), 4 C.P.C. (2d) 26.
- Davies v. Clarington (Municipality), 2010 ONSC 6103, [2010] O.J. No. 4900, at para. 26.