Johnston v. Law Society of Prince Edward Island, (1990) 83 Nfld. & P.E.I.R. 144 (PEICA)

• Judge: Carruthers, C.J.P.E.I., McMahon and Mullally, JJ.A.
• Case Date: April 04, 1990
• Jurisdiction: Prince Edward Island
• Citations: (1990), 83 Nfld. & P.E.I.R. 144 (PEICA)

Johnston v. P.E.I. Law Soc. (1990), 83 Nfld. & P.E.I.R. 144 (PEICA);

    260 A.P.R. 144

MLB headnote and full text

Franklyn R. Johnston (applicant) v. Law Society of Prince Edward Island and Alan K. Scales, Q.C. (respondents)

(AD-0159)

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

Prince Edward Island Supreme Court

Appeal Division

Carruthers, C.J.P.E.I., McMahon and Mullally, JJ.A.

April 4, 1990.

Summary:

In 1979 Franklyn Johnston lodged a complaint with the Law Society of Prince Edward Island concerning Alan K. Scales, Q.C. In 1985 Johnston obtained an order from the Prince Edward Island Supreme Court, Trial Division, directing the disciplinary committee of the Law Society of Prince Edward Island to conduct a hearing. The order also dealt with the composition of the committee. Johnston disagreed with the disciplinary committee's decision and applied for certiorari to quash the decision. The application was dismissed by the Prince Edward Island Supreme Court, Trial Division, because it was not filed within the time period. Johnston appealed to the Appeal Division.

However, after the notice of appeal was filed with the Appeal Division, the Appeal Division gave a decision in an unrelated case (Dumont v. Law Society of Prince Edward Island, unreported) which impugned the composition of the disciplinary committee. Johnston commenced an action in the Trial Division to determine whether the Court of Appeal's decision in Dumont applied to his appeal of the decision to deny him certiorari to quash the disciplinary committee's decision.

In a judgment reported at 73 Nfld. & P.E.I.R. 232; 229 A.P.R. 232, the Prince Edward Island Supreme Court, Trial Division, dismissed the application on the ground that jurisdiction in the matter was vested in the Court of Appeal. Johnston appealed.

The Prince Edward Island Supreme Court, Appeal Division, in a judgment reported at 76 Nfld. & P.E.I.R. 242; 235 A.P.R. 242, dismissed the appeal.

Johnston then applied to the Prince Edward Island Supreme Court, Appeal Division for judicial review of the composition of the disciplinary committee. Johnston sought a declaration that the proceedings of the committee were a nullity and asked for an order in the nature of mandamus instructing the Law Society to constitute a proper committee to hear his complaint. Scales applied to have the application dismissed on the ground of res judicata or estoppel. Scales also submitted that Johnston's application constituted an abuse of the court's process.

The Prince Edward Island Supreme Court, Appeal Division, granted Scales' application and dismissed Johnston's application.

Courts - Topic 2105

Jurisdiction - Appellate jurisdiction - Court of Appeal - Civil appeals - Original jurisdiction - The disciplinary committee of the Law Society dismissed Johnston's complaint - Johnston's application for judicial review was dismissed by the Prince Edward Island Supreme Court, Trial Division, because it was out of time - Johnston appealed to the Court of Appeal - Johnston also applied to the Court of Appeal for a declaration that the committee was improperly constituted - The respondent submitted that the Court of Appeal lacked jurisdiction to make the declaration because it was an original matter, not an appeal from the Trial Division - The Prince Edward Island Court of Appeal observed that while the Appeal Division may have original jurisdiction, it was a power that should be exercised sparingly - See paragraphs 16 to 20.

Estoppel - Topic 379

Estoppel by record - Res judicata as a bar to subsequent proceedings - Cause of action - The Prince Edward Island Supreme Court, Trial Division, specified the composition of the Law Society's disciplinary committee - The committee dismissed Johnston's complaint and he appealed - Johnston also applied to the Court of Appeal for a declaration that the disciplinary committee was improperly constituted - The Prince Edward Island Court of Appeal dismissed the application on the ground of res judicata or cause of action estoppel - The court held that the matter of the committee's composition should have been raised at the time the Trial Division made the order - See paragraphs 23 to 44.

Estoppel - Topic 379

Estoppel by record - Res judicata as a bar to subsequent proceedings - Cause of action - The Prince Edward Island Court of Appeal considered the nature of res judicata as a defence in a civil matter - See paragraphs 23 to 35 - The court elaborated on the distinction between issue estoppel and cause of action estoppel and set forth the test for each - See paragraphs 29 to 35.

Estoppel - Topic 380

Estoppel by record - Res judicata as a bar to subsequent proceedings - Matters in issue - [See first Estoppel - Topic 379].

Estoppel - Topic 381

Estoppel by record - Res judicata as a bar to subsequent proceedings - In civil proceedings - [See second Estoppel - Topic 379].

Estoppel - Topic 386

Estoppel by record - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - Issue estoppel - [See first Estoppel - Topic 379].

Estoppel - Topic 387

Estoppel by record - Res judicata as a bar to subsequent proceedings - Matters or claims available in prior proceedings - [See first Estoppel - Topic 379].

Estoppel - Topic 387

Estoppel by record - Res judicata as a bar to subsequent proceedings - Matters or claims available in prior proceedings - [See second Estoppel - Topic 379].

Practice - Topic 2228

Pleadings - Striking out pleadings - Grounds - Res judicata - [See second Estoppel - Topic 379].

Practice - Topic 2229

Pleadings - Striking out pleadings - Grounds - Issues which could have been raised in prior action between same parties - [See second Estoppel - Topic 379].

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - The Prince Edward Island Supreme Court, Trial Division, specified the composition of the Law Society's disciplinary committee - The committee dismissed Johnston's complaint and he appealed - Johnston also applied to the Court of Appeal for a declaration that the disciplinary committee was improperly constituted - The respondents submitted that the application was an abuse of process because Johnston was attempting to litigate the matter by installments - The respondent claimed the matter should have been raised when the order was made - The Prince Edward Island Court of Appeal dismissed Johnston's application as an abuse of process - See paragraphs 45 to 47.

Practice - Topic 6258

Judgments and orders - Setting aside orders - In a collateral action - The Prince Edward Island Supreme Court, Trial Division, ordered the Law Society to hear Johnston's complaint and specified the composition of the disciplinary committee - The committee dismissed Johnston's complaint - Johnston's application for judicial review was dismissed by the Trial Division because it was out of time - Johnston appealed - Johnston also applied to the Court of Appeal for a declaration that the disciplinary committee was improperly constituted - The Prince Edward Island Court of Appeal observed that the application should be dismissed because it constituted a collateral attack on the original order by the Trial Division - See paragraphs 21 and 22.

Cases Noticed:

Johnston v. Law Society of Prince Edward Island (1982), 37 Nfld. & P.E.I.R. 142; 104 A.P.R. 142 (P.E.I.S.C.), refd to. [para. 3].

Johnston v. Law Society of Prince Edward Island (1985), 53 Nfld. & P.E.I.R. 181; 156 A.P.R. 181 (P.E.I.C.A.), refd to. [para. 3].

Johnston v. Law Society of Prince Edward Island (1985), 54 Nfld. & P.E.I.R. 329; 160 A.P.R. 329 (P.E.I.S.C.), refd to. [para. 3].

Johnston v. Law Society of Prince Edward Island and Scales (1987), 65 Nfld. & P.E.I.R. 101; 199 A.P.R. 101 (P.E.I.S.C.), refd to. [para. 5].

Johnston v. Law Society of Prince Edward Island (1987), 67 Nfld. & P.E.I.R. 52; 206 A.P.R. 52, refd to. [para. 5].

Johnston v. Law Society of Prince Edward Island (1988), 69 Nfld. & P.E.I.R. 168; 211 A.P.R. 168 (P.E.I.C.A.), refd to. [para. 5].

Johnston v. Law Society of Prince Edward Island (1988), 73 Nfld. & P.E.I.R. 232; 229 A.P.R. 232, refd to. [para. 7].

Johnston v. Law Society of Prince Edward Island (1989), 76 Nfld. & P.E.I.R. 242; 235 A.P.R. 242 (P.E.I.C.A.), refd to. [para. 11].

Forest and Registrar of Court of Appeal of Manitoba, Re (1977), 77 D.L.R.(3d) 445 (Man. C.A.), refd to. [para. 17].

R. v. Kwong Yick Tai (1915), 22 D.L.R. 323 (B.C.C.A.), refd to. [para. 18].

R. v. Church of Scientology; R. v. Zaharia (1986), 13 O.A.C. 17; 25 C.C.C.(3d) 149 (C.A.), refd to. [para. 19].

Fenerty v. Halifax (City) (1919), 53 N.S.R. 457, refd to. [para. 24].

Henderson v. Henderson (1843), 67 E.R. 313, refd to. [para. 25].

Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248; 2 N.R. 397, refd to. [para. 26].

Grandview (Town) v. Doering, [1976] 2 S.C.R. 621; 7 N.R. 299, refd to. [para. 30].

Cobb v. Holding Lumber Co. Ltd. (1977), 79 D.L.R.(3d) 332, appld. [para. 30].

Bank of British Columbia v. Singh (1987), 17 B.C.L.R.(2d) 256, refd to. [para. 31].

Hamada v. Northguard Mtge. Corp. (1985), 67 B.C.L.R. 115, refd to. [para. 33].

Abacus Cities Ltd. v. Bank of Montreal (1987), 80 A.R. 254, refd to. [para. 43].

Turigan et al. v. Alberta (1988), 90 A.R. 118, refd to. [para. 48].

Manitoba Language Rights, Re, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83, refd to. [para. 48].

Counsel:

W. Mark Ledwell, for the applicant;

John A. McQuaid, Q.C., for Alan K. Scales, Q.C., respondent;

Michael A. Farmer, Q.C., for the Law Society, respondent.

This application was heard on February 14, 1990, before Carruthers, C.J. P.E.I., McMahon and Mullally, JJ.A., of the Prince Edward Island Supreme Court, Appeal Division.

The following decision of the Court of Appeal was delivered on April 4, 1990, by Carruthers, C.J.P.E.I.