Johnston v. Stewart McKelvey Stirling Scales, (2012) 331 Nfld. & P.E.I.R. 101 (PEISC)

• Jurisdiction: Prince Edward Island
• Court: Supreme Court, Trial Division (Prince Edward Island)
• Judge: Taylor, J.
• Citation: (2012), 331 Nfld. & P.E.I.R. 101 (PEISC)
• Date: 28 November 2011
• Subject Matter: COURTS,PRACTICE

Johnston v. Stewart McKelvey (2012), 331 Nfld. & P.E.I.R. 101 (PEISC);

    1027 A.P.R. 101

MLB headnote and full text

Temp. Cite: [2012] Nfld. & P.E.I.R. TBEd. OC.069

Franklin R. Johnston (plaintiff) v. Stewart McKelvey Stirling Scales, formerly known as Scales, Ghiz, Jenkins & McQuaid, a Law Firm, and Alan K. Scales (defendants)

(S1-GS-12426; 2012 PESC 29)

Indexed As: Johnston v. Stewart McKelvey Stirling Scales

Prince Edward Island Supreme Court

Taylor, J.

October 25, 2012.

Summary:

On December 15, 1992, the plaintiff sued a law firm and one of its lawyers (the defendants), alleging civil conspiracy and interference with contractual relations respecting his efforts to develop property between 1977 and 1990. In 2011, the defendants applied for summary judgment dismissing the plaintiff's claim and to have the action dismissed for delay.

The Prince Edward Island Supreme Court allowed the application. The court dismissed the plaintiff's claim based on "(1) Rule 20.01(3) - Summary Judgment; (2) Rule 24.01 - Dismissal of Action for Delay; and (3) Section 19 of the Judicature Act - Abuse of Process".

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process (incl. abuse of process by relitigation) - [See Practice - Topic 5277.1 ].

Practice - Topic 1901

Pleadings - Particulars - General - The Prince Edward Island Supreme Court pointed out that particulars were not evidence - They were an item of pleadings under Rule 25 (Pleadings in an Action) - The Civil Procedure Rules intended that particulars would supplement the statement of claim in the sense of remedying a deficiency or deficiencies - See paragraphs 28 and 29.

Practice - Topic 5277.1

Trials - Stay of proceedings - Abuse of process - On December 15, 1992, the plaintiff sued a law firm and one of its lawyers, Scales (the defendants), alleging a civil conspiracy to interfere with his efforts to develop property between 1977 and 1990 - In 2011, the defendants applied to have the action dismissed - The Prince Edward Island Supreme Court noted that the court could dismiss an action for abuse of process without relying on any specific rule of civil procedure, and could do so on the court's own initiative - The court stated that the delay in this case, and the resultant abuse of the court's process had been extreme - The plaintiff's failure to take reasonable steps to move his case forward and his failure to bring it to trial, amounted to an abuse of the court's process - The court stayed the proceeding with costs to the defendants on a partial indemnity basis - See paragraphs 93 to 106.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - On December 15, 1992, the plaintiff sued a law firm and one of its lawyers, Scales (the defendants), alleging a civil conspiracy to interfere with his efforts to develop property between 1977 and 1990 - In 2011, the defendants applied for summary judgment to have the plaintiff's action dismissed for delay (rule 24) - The Prince Edward Island Supreme Court, dismissed the action - Considering the length of time since the events which gave rise to this claim, since the action was commenced and since expiration of the limitation period, there was be a presumption of extreme prejudice to the defendants, which the plaintiff was unable to overcome - Even if the plaintiff had overcome the presumption of prejudice, the defendants had provided actual proof of prejudice: the death of important witnesses and Scales' inability to remember details of the events which occurred so many years ago - See paragraphs 43 to 79.

Practice - Topic 5362

Dismissal of action - Grounds - General and want of prosecution - Prejudice to defendant - [See Practice - Topic 5360 ].

Practice - Topic 5362.1

Dismissal of action - Grounds - General and want of prosecution - Inference of prejudice (incl. rebuttal of) - [See Practice - Topic 5360 ].

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - On December 15, 1992, the plaintiff sued a law firm and one of its lawyers (the defendants), alleging civil conspiracy and interference with contractual relations respecting his efforts to develop property between 1977 and 1990 - In 2011, the defendants applied for summary judgment to have the plaintiff's action dismissed - The plaintiff argued that the motion was premature as discovery was not yet completed - The Prince Edward Island Supreme Court rejected the notion that in this case the failure to complete discoveries almost 20 years after commencement of the action could be used to forestall a summary judgment motion - See paragraph 19.

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - On December 15, 1992, the plaintiff sued a law firm and one of its lawyers (the defendants), alleging that they were part of a civil conspiracy to interfere with his efforts to develop property between 1977 and 1990 - In 2011, the defendants applied for summary judgment to dismiss the statement of claim (rule 20) - The Prince Edward Island Supreme Court found that the defendants satisfied the onus upon them to show that there was no genuine issue of material fact requiring trial - Therefore, it was up to the plaintiff to establish that his claim had a real chance of success - The court found that the plaintiff was unable to show that there was a genuine issue requiring a trial and therefore granted summary judgment dismissing the plaintiff's claim in its entirety - See paragraphs 20 to 42.

Cases Noticed:

Lameman et al. v. Canada (Attorney General) et al. (2008), 372 N.R. 239; 429 A.R. 26; 421 W.A.C. 26; 2008 SCC 14, refd to. [para. 18].

Business Development Bank of Canada v. Durelle et al. [2007] N.B.R.(2d) Uned. 56; 2007 NBBR 195, refd to. [para. 19].

Hi-Tech Group Inc. v. Sears Canada Inc. (2001), 141 O.A.C. 56 (C.A.), refd to. [para. 25].

Westland Homes Ltd. et al. v. Schurman (M.F.) Ltd. (1992), 101 Nfld. & P.E.I.R. 122; 321 A.P.R. 122 (P.E.I.C.A.), refd to. [para. 41].

1061590 Ontario Ltd. v. Ontario Jockey Club et al. (1995), 77 O.A.C. 196; 21 O.R.(3d) 547 (C.A.), refd to. [para. 41].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321; 96 D.L.R.(4th) 289, refd to. [para. 46].

Woodheath Developments Ltd. v. Goldman (2003), 175 O.A.C. 259; 66 O.R.(3d) 731 (Div. Ct.), refd to. [para. 49].

Connick v. Ramsay (2008), 282 Nfld. & P.E.I.R. 93; 868 A.P.R. 93; 2008 PESCTD 42, refd to. [para. 56].

Marché d'Alimentation Denis Thériault ltée et al. v. Giant Tiger Stores Ltd. (2007), 247 O.A.C. 22; 2007 ONCA 695, refd to. [para. 57].

Hurst et al. v. Société Nationale de l'Amiante et al. (2008), 269 O.A.C. 236; 2008 ONCA 573, refd to. [para. 60].

Susin v. Baker and Baker et al., [2003] O.T.C. 287; 2003 CarswellOnt 1248 (Sup. Ct.), refd to. [para. 61].

Farrar v. McMullen, [1971] 1 O.R. 709 (C.A.), refd to. [para. 62].

Albrecht v. Meridian Building Group Ltd. (1988), 29 O.A.C. 399; 27 C.P.C.(2d) 213 (Div. Ct.), refd to. [para. 63].

New Solutions Financial Corp. et al. v. Zilkey et al., [2011] O.TC. Uned. 448; 2011 ONSC 448 (Master), refd to. [para. 64].

MacDougall v. Mutual Life Assurance Co. et al. (2004), 241 Nfld. & P.E.I.R. 92; 716 A.P.R. 92; 2004 PESCTD 61, refd to. [para. 89].

Convay et al. v. Marsulex Inc. et al., [2002] O.A.C. Uned. 311 (C.A.), refd to. [para. 99].

Kuhr v. Pearlman (1991), 76 Man.R.(2d) 67; 10 W.A.C. 67 (C.A.), refd to. [para. 100].

Authors and Works Noticed:

Sopinka, John, Lederman, Sidney M., and Bryant, Alan W., The Law of Evidence in Canada (3rd Ed. 2009), pp. 144 to 152 [para. 45].

Counsel:

Peter Mockler, for the plaintiff;

John Hennessey, Q.C., and Sharon Farrell, for the defendants.

This matter was heard in Charlottetown, P.E.I., on November 28, 2011 and February 27, 2012, before Taylor, J., of the Prince Edward Island Supreme Court, who delivered the following decision on October 25, 2012.