Derek has a broad litigation practice with a focus on commercial disputes, construction litigation, real property disputes, municipal litigation, estate litigation and employment law.
Derek is an experienced litigator. He has successfully represented clients at all levels of court in Ontario including the Court of Appeal and Divisional Court, at the Supreme Court of Canada, as well as at various tribunals including the Ontario Land Tribunal, the Human Rights Tribunal, and the Labour Relations Board.
Derek provides practical advice focused on achieving the best possible results for his clients.
2022 ONCA 643 | 2023 CanLII 24515 (SCC) (leave to appeal to SCC dismissed)
This case involved the interpretation of a clause in a Will for an option to purchase “the farming business carried on by [the testator]”, which farming business included the farm land. The Application Judge found that the farming business referred to in the Will ceased to exist at the time of the testator’s death and that the option therefore failed, such that the farm was to be divided amongst the residuary beneficiaries.
Derek successfully represented the appellant at the Court of Appeal. The Court of Appeal found the Application Judge committed an extricable error of law in interpreting the Will by failing to apply section 22 of the Succession Law Reform Act, which provides that a will “takes effect as if it had been made immediately before the death of the testator with respect to … the property of the testator.”
At the time of the testator’s death, she still owned the land and ran it productively by leasing it. She received income and declared it on her tax return. “On each tax return in evidence, she indicated that it would not be the final year of farming,” the Court of Appeal noted. “On any reading of these facts, the testator was carrying on a farm business [on the subject property] at the time of her death. … There is nothing in the phrase “the farming business carried on by me” that points unambiguously to the business carried on in 1985 over the business carried on in 2019.”
The Appellant was entitled to exercise the option to purchase the farm land under the Will.
Leave to appeal to the Supreme Court of Canada was dismissed.
2021 ONCA 284 | 155 O.R. (3d) 383
The Applicant obtained a Judgment in British Columbia in 2009 for a mortgage debt, and had the Judgment registered in Ontario in 2011. The Applicant did not file a writ within 6 years of the Ontario Judgment. Over $300,000 remained owing under the Judgment by the Respondent. The Applicant brought a motion seeking leave to file a writ 13 months after the expiry of the 6 year period. The motion was dismissed. The Applicant appealed.
Derek successfully represented the Applicant at the Court of Appeal. The Motion Judge’s inference that the Applicant had waived his rights under the Judgment based on the delay was palpably unjustified on the record. The Applicant had provided an explanation for the delay in that he believed there to be little or no equity in the Respondent’s Ontario properties in 2011. The Motion Judge’s decision was overturned and the Applicant was granted leave to file a writ against the Respondent’s Ontario properties.
2021 ONSC 986 and 2021 ONSC 6168
A commercial landlord was sued for $190,000 by its corporate tenant, for allegedly arbitrarily or unreasonably withholding consent to assign the lease. Derek successfully represented the commercial landlord and obtained a dismissal of the action via a motion for summary judgment.
On the issue of costs, the Court found that the conduct of the Plaintiff corporation and the non-party director of the Plaintiff corporation “was misguided, self-serving, disrespectful of the opposing parties and their counsel and disrespectful of the court process.” The Court further found that the non-party principal had fabricated evidence in an attempt to mislead the defendants, their counsel and the court in order to gain an unfair advantage.
The Court ordered that the Plaintiff corporation pay the commercial landlord its substantial indemnity costs of the action. The Court also ordered that the non-party principal of the Plaintiff corporation was jointly and severally liable for payment of the costs award.
2022 CanLII 25742 (ON LT)
The Applicant sought minor variances to rectify zoning deficiencies associated with an existing enclosed canopy structure attached to its business. The Committee of Adjustment refused the Application. The Applicant appealed to the Ontario Land Tribunal.
Derek successfully represented the Applicant at the Ontario Land Tribunal and obtained an order authorizing the requested minor variances.
Several neighbours opposed the Application and one neighbour was granted party status at the Tribunal. The Tribunal preferred the evidence of the Applicant’s expert over the evidence of the neighbour’s expert, noting that “It is well-settled that, in cases where minor variances are sought after the fact, they are to be evaluated as if the work or construction had not yet been completed and this was the approach taken by [the Applicant’s expert].”
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