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Robert J. Drake
Robert J. Drake
Relevant Practices


Year of Call
Ontario, 2009

Robert J. Drake

Partner

Having a wealth of knowledge and experience in both commercial and insolvency matters, clients rely on Robert for his advice and vigorous advocacy skills.

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Robert Drake is Co-chair of our Litigation Group and a member of our Restructuring & Insolvency Group.  His practice focuses on general civil, commercial and construction litigation law with an emphasis on insolvency & restructuring. Robert has successfully represented clients in the Superior Court of Justice and the Ontario Court of Justice. As the co-chair of our litigation group, Robert has also become the go-to counsel for his opinion on several legal issues that arise in other areas of our litigation practice.

Relevant Practices
Litigation & Alternative Dispute Resolution
Restructuring and Insolvency
Employment & Labour
Year of Call
Ontario, 2009

Representative Legal Matters

  • Key team member in the CCAA Urbancorp proceedings as counsel to the Monitor, which has resulted in a number of decisions that have changed the way CCAA proceedings and the trust provisions of the Construction Act have been interpreted. Specifically, these include decisions about how court-appointed Monitors are to deal with intra-creditor contests of rights, as well as a decision of a five-member panel of the Court of Appeal for Ontario establishing statutory trust rights in CCAA proceedings.
  • Trial and Appeal counsel along with Robert Malen for the largest self-storage company in Canada on a trial and appeal dealing with a novel issue in property law (InStorage LP and Matthew Brady): being whether the remedy of specific performance was available when the property itself was not unique, but the circumstances of the real estate transaction were. The Court of Appeal for Ontario held that specific performance was available in such a circumstance.
  • Trial counsel with Robert Malen on a large, complex $4m real estate transaction that went sideways and dealt with the obligation of a purchaser on closing and anticipatory breach issues (801Assets). Specifically, the question at trial was whether the vendors had anticipatorily breached the agreement of purchase and sale, or whether the purchaser failed to appropriately tender. The case was resolved in our favour (for the purchaser) when one of the principles of the vendor confessed that the vendor did not continue with the transaction because of a material increase in value that they wished to confiscate.
  • Part of the appeal team along with Robert Malen that went to the Court of Appeal in a land breaking case that dealt with a civil forfeiture issue and a $1 million costs order against the Crown at the proceedings below. The Crown had attempted to seize two properties, including the old Molson Brewery near Barrie, as proceeds of crime related to a marijuana growing operation were found there. The Crown appealed the decision, protesting the findings on the merits of bad faith warranting the costs order, as well as the jurisdiction of the Ontario Court of Justice to make such a large awards of costs. (R. v. Fercan Developments Inc.) We represented one of the respondents to the appeal, FirstOntario Credit Union (one of the largest credit unions in Ontario), to ensure their rights under their mortgage which were subject to attack under the forfeiture application and subsequent appeal. The Court of Appeal sided with our case and dismissed the appeal.
  • Thyssenkrupp Elevator (Canada) Inc. v. 1147335 Ontario Inc. [2015] ONSC 503 (CanLII) (Ont. S.C.J.)
  • Rexel Canada Electrical v. Tron Electric [2014] ONSC 2047 (CanLII) (Ont. S.C.J.)
  • 2190322 Ontario Ltd. v. Ajilon Consulting [2014] OJ No 536 (QL) (Div. Ct.)
  • 7326246 Canada Inc. and Kevin Gardiner v. Ajilon Consulting [2014] OJ No 538 (QL) (Div. Ct.)
  • Thyssenkrupp Elevator v 1147335 Ontario Inc. [2013] ONSC 485 (CanLII) (Ont. Master)
  • Heydary v. Baweja, 2011 ONSC 2568 (CanLII)
  • Tulloch v. Phelps Apartment Laundries (2010 HRTO 550 (CanLII))

Publications, Presentation & Media Highlights

  • Contributor, Civil Procedure and Practice in Ontario “Costs of Proceedings”,  CanLII, 2021
  • Contributor, Dismissal and Employment Law Digest, Toronto, Canada Law Book, 2015
  • Contributor,  Falconbridge on Mortgages – “Deemed Trusts”, Toronto, Canada Law Book, 2003

Professional Associations & Memberships

  • Law Society of Upper Canada
  • Canadian Bar Association
  • Ontario Bar Association
  • The Advocates’ Society
  • Turnaround Management Association

Community Involvement

Education

  • 2008 – Queen’s University (J.D.)
  • 2005 – University of Guelph (B.A. Hons. with distinction)

Other

  • Key team member in the CCAA Urbancorp proceedings as counsel to the Monitor, which has resulted in a number of decisions that have changed the way CCAA proceedings and the trust provisions of the Construction Act have been interpreted. Specifically, these include decisions about how court-appointed Monitors are to deal with intra-creditor contests of rights, as well as a decision of a five-member panel of the Court of Appeal for Ontario establishing statutory trust rights in CCAA proceedings.
  • Trial and Appeal counsel along with Robert Malen for the largest self-storage company in Canada on a trial and appeal dealing with a novel issue in property law (InStorage LP and Matthew Brady): being whether the remedy of specific performance was available when the property itself was not unique, but the circumstances of the real estate transaction were. The Court of Appeal for Ontario held that specific performance was available in such a circumstance.
  • Trial counsel with Robert Malen on a large, complex $4m real estate transaction that went sideways and dealt with the obligation of a purchaser on closing and anticipatory breach issues (801Assets). Specifically, the question at trial was whether the vendors had anticipatorily breached the agreement of purchase and sale, or whether the purchaser failed to appropriately tender. The case was resolved in our favour (for the purchaser) when one of the principles of the vendor confessed that the vendor did not continue with the transaction because of a material increase in value that they wished to confiscate.
  • Part of the appeal team along with Robert Malen that went to the Court of Appeal in a land breaking case that dealt with a civil forfeiture issue and a $1 million costs order against the Crown at the proceedings below. The Crown had attempted to seize two properties, including the old Molson Brewery near Barrie, as proceeds of crime related to a marijuana growing operation were found there. The Crown appealed the decision, protesting the findings on the merits of bad faith warranting the costs order, as well as the jurisdiction of the Ontario Court of Justice to make such a large awards of costs. (R. v. Fercan Developments Inc.) We represented one of the respondents to the appeal, FirstOntario Credit Union (one of the largest credit unions in Ontario), to ensure their rights under their mortgage which were subject to attack under the forfeiture application and subsequent appeal. The Court of Appeal sided with our case and dismissed the appeal.
  • Thyssenkrupp Elevator (Canada) Inc. v. 1147335 Ontario Inc. [2015] ONSC 503 (CanLII) (Ont. S.C.J.)
  • Rexel Canada Electrical v. Tron Electric [2014] ONSC 2047 (CanLII) (Ont. S.C.J.)
  • 2190322 Ontario Ltd. v. Ajilon Consulting [2014] OJ No 536 (QL) (Div. Ct.)
  • 7326246 Canada Inc. and Kevin Gardiner v. Ajilon Consulting [2014] OJ No 538 (QL) (Div. Ct.)
  • Thyssenkrupp Elevator v 1147335 Ontario Inc. [2013] ONSC 485 (CanLII) (Ont. Master)
  • Heydary v. Baweja, 2011 ONSC 2568 (CanLII)
  • Tulloch v. Phelps Apartment Laundries (2010 HRTO 550 (CanLII))
  • Contributor, Civil Procedure and Practice in Ontario “Costs of Proceedings”,  CanLII, 2021
  • Contributor, Dismissal and Employment Law Digest, Toronto, Canada Law Book, 2015
  • Contributor,  Falconbridge on Mortgages – “Deemed Trusts”, Toronto, Canada Law Book, 2003
  • Law Society of Upper Canada
  • Canadian Bar Association
  • Ontario Bar Association
  • The Advocates’ Society
  • Turnaround Management Association
  • 2008 – Queen’s University (J.D.)
  • 2005 – University of Guelph (B.A. Hons. with distinction)
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