Robert Malen
Business Dispute Litigation; Commercial Litigation; Real Estate
Litigation; Professional Negligence Litigation; Leasing Litigation;
Mortgage Remedies; Banking Litigation, Franchise Litigation.
Areas of Practice:
Robert is a senior member of the Litigation Group. His practice is devoted to the resolution of commercial, banking, and real estate disputes through both litigation and mediation.Robert has been active throughout his career as an author on litigation practice related matters. Most recently, the Court of Appeal of Prince Edward Island in Severance v Oliver [2007] P.E.I. J. No. 48, quoted extensively in its reasons from Robert’s article titled “The New Costs Rules: Theory v Practice”. The Ontario Court of Appeal in Murano vs. Bank of Montreal (1998, 41 O.R. 3d) quoted from another of Robert’s articles titled “To Assess or to Fix Costs”. Robert has taught business law at the University of Toronto and was the Contributing Legal Editor and monthly columnist for Canadian Doctor Magazine. Recently, on October 16, 2007, Robert delivered a lecture to the Ontario Bar Association on the topic of The Covenant for Quiet Enjoyment in a lease. The lecture was given in Toronto, and was televised to other locations in Ontario.
Robert has acted at every level of court up to and including the Supreme Court of Canada. Robert has been trial counsel on numerous trials, and has also acted as appeal counsel before the Divisional Court of Ontario, the Court of Appeal of Ontario and the Supreme Court of Canada.
Education:
McGill University (B.A. (First Class Honours) 1968), Northwestern University (M.A. 1969), University of Toronto (LL.B. 1977).Affiliations:
Law Society of Upper Canada; Canadian Bar Association, Metropolitan Toronto Lawyers Associations.Cases of Note:
Recently, Robert successfully resisted an application for an injunction to enforce a post-termination non-competition covenant in an expired franchise agreement (W.A.B. Bakery Franchising Ltd. v Canam Advertising Ltd. et. al (Ont. Sup. Ct. November 19, 2007). Robert successfully argued issues relating to an attempt to amend pleadings and add a defendant after the expiry of a limitation period (Tarkalas v Zographos et. al. (Ont. Sup. Ct., February 28, 2006). Robert also argued issues relating to commencement of a limitation period and breach of fiduciary duty in: Frumusa v. Ungaro [2005] O.J. No. 2412 (Ont. Sup. Ct.). Robert appeared before the Ontario Court of Appeal and successfully argued issues relating to an attempt by a landlord to rectify a commercial lease (Enticor Properties Inc. v Quik-Run Courier Ltd. [2005] O.J. No. 530). Robert successfully argued issues in the Ontario Superior Court relating to issues arising during the course of an arbitration (Samuel Rosen and Sons Ltd. v. 776620 Ontario Ltd. [2002] O.J. No. 4851) After a very lengthy two month trial, Robert was successful in obtaining significant relief in the form of a declaration that a trust was a sham (Hilltop Group Limited et. al. v. Katana et. al. [2002] O.J. No. 2461 (Ont. Sup. Ct.). On the same trial, Robert was successful in obtaining a large award of punitive damages [2002] O.J. No. 4136 (Ont. Sup. Ct.).Robert appeared before the Supreme Court of Canada on an issue involving the enforceability of a mortgage against its beneficial owners. Robert was successful on this appeal which involved several important issues of real estate and mortgage law (Friedmann Equity Developments Inc. v Final Note Ltd. (2000) 188, DLR (4th), 269.). This case was related to another case which Robert had successfully argued 12 years earlier before the Ontario Court of Appeal which involved important issues of agency and trust law (Trident Holdings Ltd. v Danand Investments Ltd. (1988), 49 DLR (4th), 1).
In November 1998, Robert appeared before the Court of Appeal for Ontario on a case involving the ability of a limited partnership to redeem a mortgage under s 18(1) of the Mortgages Act. This case involved important issues dealing with mortgage law, partnership law and the interpretation of the Mortgages Act (Kucor Construction & Developments v Canada Life Assurance Co. (1999), 41 O.R. (3rd), 577).
Robert has acted in disputes amongst shareholders and cases involving the rights of minority shareholders (Ferguson vs. Imax System Corp. (1982), 34 O.R. (2d) 298).
Robert has also acted in many cases involving real estate disputes. One of his cases, decided in 1989, involved important issues of rights of first refusal and option agreements (Municipal Savings and Loan Corp. V Oswenda Investments Ltd. (1989) 69 O.R. (2d) 521).