Robert D. Malen

• In 2023 Robert appeared on an important case involving the interpretation of sections of the Registry Act and the Land Titles Act (Melville v McLaren (2023) 167 O.R. (3d) 635)
• In 2019 Robert was successful before the Superior Court on an application involving the interpretation of a Will (In the matter of the Estate of Frances Irene Wheeler, deceased 2019 CarswellOnt 19637)
• In 2018 and in 2019 Robert was successful before the Superior Court and later the Ontario Court of Appeal on a summary judgment motion acting for a Quebec corporation in the collection of a debt (Distribution Katrina v Enroute Imports Inc. 2018 CarswellOnt 16605 and 2019 CarswellOnt 8674)
• In 2017 and in 2018 Robert appeared before the Superior Court and later the Ontario Court of Appeal on a municipal matter acting for a developer (DiBattista Gambin Developments Limited and the City of Brampton, 2017 CarswellOnt 16034, and 2018 CarswellOnt 7599)
• In 2016 Robert was successful after a seven day trial in obtaining an award of specific performance for his client of a valuable commercial property (801 Assets v 606446 Ontario Limited (2017) 71 R.P.R. (5th) 260, 2016 CarswellOnt 2772 (Sup Ct.), and he was successful before the Ontario Court of Appeal on a legally significant issue involving the Crown’s liability for costs (R. v Fercan (2016) 130 O.R. (3d) 321 (C.A.))
• In 2015 Robert appeared on several significant cases, one of which dealt with the rights and obligations of franchisees and franchisors.
• In 2014 Robert appeared on a legally significant case in the area of real property law which addressed the availability of the remedy of specific performance to vendors of real property (Matthew Brady Storage Corp. vs. Instorage Limited Partnership (2014) 125 O.R. (3d) 247 (C.A.))
• 2013 was also a busy year for Robert in which he appeared on two occasions on appeals to the Ontario Court of Appeal, as well as a very lengthy trial in the Superior Court of Justice.
• In 2012 Robert appeared as counsel on three lengthy trials before the Ontario Superior Court of Justice. In the latest trial heard in October 2012, Robert was successful in acting for a property developer against whom claims had been made by a contractor for alleged work completed at the developer’s properties. Robert was successful in having all claims dismissed against his client, with costs on a substantial indemnity basis (Hanna v Fercan (2012) CarswellOnt 15237 (Sup. Ct.))
• In October 2011, Robert successfully brought a procedural motion allowing the plaintiff to amend its claim to add certain parties. Robert was initially successful on the motion before the Ontario Master, and later before a Superior Court Judge when the Master’s decision was appealed (LDR Properties Inc. v 605446 Ontario Ltd. 2011 CarswellOnt 284 (Master) and 2011 CarswellOnt. 11543, A.C.W.S. (3d) 251 (Sup.Ct.))
• In June 2011, Robert successfully represented the former President of a large company on an issue involving the enforceability of severance provisions in the President’s employment contract. This was an important decision in the area of employment law and was reported in Wright v Young & Rubicam Group of Cos. (2012) C.L.L.C. 210-018
• In January 2011, Robert completed a three week construction lien and contractual dispute trial which resulted in a successful result for his developer client on construction related issues
• Robert was successful in an oppression action on behalf of a creditor against the directors of a corporation in DiBattista Gambin Developments Limited v Ballantry Homes et. al. (2010) 97 O.R. (3d) 579 (Sup. Ct.) aff’d (2011) 80 B.L.R. (4th)(C.A.)
• Robert was successful on an application in the determination of a tenant’s rights under a commercial lease (Colangelo vs. Queen Hammersmith Holdings Inc. (2009) CarswellOnt 650. In another recent decision, Robert was successful on an appeal relating to the relevance of discovery questions in an oppression action under the Ontario Business Corporations Act (DiBattista Gambin Developments Ltd. vs. Fernbrook Homes (Creditview) Ltd. (2008) CarswellOnt 653
• 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 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)
• 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)

Publications

• “Assignment, Subletting and Change of Control in a Commercial Lease”, Thomson Reuters (2nd ed.) (edited with Harvey Haber), October 2023
• “Civil Procedure and Practice in Ontario” (co-authored with Robert Drake), 2021 CanLII. It explains the Rules of Civil Procedure, the Courts of Justice Act, and the Limitations Act, along with the case law interpreting them. This will be the go-to resource to those in the profession whether you are a specialist or a staff member or a member of the general public. Robert, along with his colleague Robert Drake, contributed the chapter on costs of proceedings
• “Distress: A Commercial Landlord’s Remedy”, Carswell (2nd ed.) (edited with Harvey Haber) April 2021
• Robert was the legal columnist for Canadian Doctor Magazine and wrote a monthly column entitled “Law Outlook”
• “The Landlord’s Covenant for Quiet Enjoyment in a Shopping Centre Lease” in Shopping Centre Leases (2d ed) 2008
• “Case Comment: Boucher v Public Accountants Council for the Province of Ontario”  The Advocates’ Quarterly, December 2004 at page 373
• “The New Costs Rules” The Advocates’ Quarterly, July 2004 at page 432
• “Assessment vs Fixing of Costs: Emerging Principles” The Advocates’ Quarterly, April 2001 at page 230
• “Security for Costs on Appeal” The Advocates’ Quarterly, June 1996 at page 247
• “Reopening a Trial: New Developments in the Law” The Advocates’ Quarterly, December 1996 at page 497
• “To Assess Costs or to Fix Costs: That is the Question” The Advocates’ Quarterly, January 1998 at page 85. This article has been favourably cited by several courts in Canada including decisions of the Ontario Court of Appeal
• “The Landlord’s Covenant for Quiet Enjoyment” in Tenant’s Rights and Remedies in a Commercial Lease (1998) revised and updated in Tenant’s Rights and Remedies in a Commercial Lease (Carswell, 2nd ed,) 2014

Lectures

• For a period of four years, Robert was a lecturer at the University of Toronto where he taught a weekly law course for business students
• 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 in Ontario

• Law Society of Upper Canada
• Canadian Bar Association
• Metropolitan Toronto Lawyers Associations

• 1977 – University of Toronto (LL.B.)
• 1969 – Northwestern University (M.A.)
• 1968 – McGill University (B.A. (First Class Honours))