Johnston v. Law Society of Prince Edward Island, (1988) 69 Nfld. & P.E.I.R. 168 (PEICA)

• Case Date: February 19, 1988
• Jurisdiction: Prince Edward Island
• Citations: (1988), 69 Nfld. & P.E.I.R. 168 (PEICA)

Johnston v. P.E.I. Law Soc. (1988), 69 Nfld. & P.E.I.R. 168 (PEICA);

    211 A.P.R. 168

MLB headnote and full text

Franklyn R. Johnston (appellant) v. Law Society of Prince Edward Island (respondent)

(No. AD/0005)

Indexed As: Johnston v. Law Society of Prince Edward Island

Prince Edward Island Supreme Court

Appeal Division

Carruthers, C.J.P.E.I., Mullally and McMahon, JJ. (ad hoc)

February 19, 1988.

Summary:

The plaintiff complained to the Law Society of Prince Edward Island about an alleged conflict of interest of a lawyer, who acted for two clients in opposition to the plaintiff's application for a building permit. The Land Use Commission (L.U.C.) ordered the West Royalty Community Improvement Committee (C.I.C.) to issue a building permit to the plaintiff. The lawyer was retained separately by C.I.C. and another party to apply for certiorari against the L.U.C.'s decision. The C.I.C. abandoned the application, but then the lawyer acted for the other party in obtaining an injunction against the C.I.C.'s issuance of the permit. The plaintiff's complaint to the Law Society was dismissed after three years, ostensibly because he had no standing to complain, but only before the Society had made an informal and two formal decisions without raising the standing issue. The plaintiff applied for a declaratory order that he had standing and for an order to compel the Society to investigate his complaint thoroughly.

The Prince Edward Island Supreme Court, in a judgment reported 37 Nfld. & P.E.I.R. 142; 104 A.P.R. 142, dismissed the application and held that the plaintiff had no standing to complain of the lawyer's conduct, because the lawyer owed no duty to him. The plaintiff appealed.

The Prince Edward Island Court of Appeal, in a judgment reported 53 Nfld. & P.E.I.R. 181; 156 A.P.R. 181, allowed the appeal and held that the Society was estopped from denying that the plaintiff had no standing by its conduct in dealing with the complaint for three years without raising the standing issue. The court referred the matter back to the trial judge for determination of the application for an order to compel the Society to investigate the complaint.

The Prince Edward Island Supreme Court, in a judgment reported 54 Nfld. & P.E.I.R. 329; 160 A.P.R. 329, allowed the application and ordered the Society to investigate the complaint in the manner prescribed by the appropriate Regulations.

The Law Society investigated the complaint and held that there was no misconduct by the lawyer. The plaintiff applied for certiorari to quash the Society's decision.

The Prince Edward Island Supreme Court, in a judgment reported 65 Nfld. & P.E.I.R. 101; 199 A.P.R. 101, dismissed the application. The plaintiff appealed and applied to amend his initial pleadings and for a transcript of argument at trial.

The Prince Edward Island Supreme Court, in a judgment reported 67 Nfld. & P.E.I.R. 52; 206 A.P.R. 52, dismissed the applications. The plaintiff again appealed.

The Prince Edward Island Court of Appeal dismissed the appeal.

Practice - Topic 2186

Pleadings - Amendment of pleadings on appeal - Lack of counsel at trial - [See Practice - Topic 2188 below].

Practice - Topic 2188

Pleadings - Amendment of pleadings on appeal - Amendment where opposite party not prejudiced - The Prince Edward Island Court of Appeal stated that the overriding consideration in the exercise of discretion in granting or refusing an amendment is whether it can be made "without injustice to the other side" - The court stated that "it is the exceptional case where an appellant is allowed to amend pleadings at the Court of Appeal stage" - An appellant unrepresented by counsel at trial appealed and sought an amendment purportedly to "clarify the pleadings" - The Court of Appeal affirmed that the purpose of the amendment was to raise a distinct defence not raised at trial - The court stated that such an amendment was rarely allowed at the appeal stage - The court refused to interfere with the trial judge's refusal to allow the amendment, as it would not be in the interests of justice to permit the amendment.

Cases Noticed:

Lynch's Estate v. Profitt, Wilson et al. (1974), 5 Nfld. & P.E.I.R. 303 (P.E.I.C.A.), refd to. [para. 11].

Tweel v. Charlottetown Area Development Corporation (1981), 32 Nfld. & P.E.I.R. 29; 91 A.P.R. 29 (P.E.I.S.C.), refd to. [para. 15].

Royal Bank of Canada v. Nichols (1987), 64 Nfld. & P.E.I.R. 227; 197 A.P.R. 227 (P.E.I.C.A.), refd to. [para. 15].

MacDonald Construction Co. Ltd. v. Ross (1980), 25 Nfld. & P.E.I.R. 118; 68 A.P.R. 118 (P.E.I.S.C.), refd to. [para. 15].

Ketteman et al. v. Hansel Properties Ltd. et al. (1987), 72 N.R. 321 (H.L.), refd to. [para. 17].

Campbell et al. v. Moxness; Co-operative Fire and Casualty Co. (1975), 56 D.L.R.(3d) 137 (Alta. C.A.), affd. 15 N.R. 423; 64 D.L.R.(3d) 766 (S.C.C.), refd to. [para. 19].

Scott Maritimes Pulp Ltd. v. B.F. Goodrich Canada Ltd. (1977), 19 N.S.R.(2d) 181; 24 A.P.R. 181 (C.A.), refd to. [para. 20].

Northwest Airporter Bus Service Ltd. v. The Queen and Minister of Transport (1978), 23 N.R. 49 (F.C.A.), refd to. [para. 23].

Black et al. v. Law Society of Alberta, [1985] 5 W.W.R. 284, refd to. [para. 25].

Statutes Noticed:

Rules of Court (Nfld.), rule 15.01(c), rule 15.02(1), rule 15.09 [para. 9].

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 15 [para. 4].

Law Society and Legal Profession Act, R.S.P.E.I. 1974, c. L-9, generally [para. 4].

Authors and Works Noticed:

Supreme Court Practice (1988), vol. 1, p. 350 [para. 15].

Counsel:

David W. Hooley, for the appellant;

Maureen Gregory, for the respondent;

Linda St. Jean, for Alan K. Scales, Q.C.

This appeal was heard on January 8 and 13, 1988, before Carruthers, C.J.P.E.I., Mullally and McMahon, JJ. (ad hoc), of the Prince Edward Island Supreme Court, Appeal Division.

On February 19, 1988, Carruthers, C.J.P.E.I., delivered the following judgment for the Court of Appeal: