Johnston v. Stewart McKelvey Stirling Scales, (2014) 350 Nfld. & P.E.I.R. 83 (PEICA)

• Judge: Matheson, C.J.P.E.I., Murphy and Cheverie, JJ.A.
• Case Date: December 06, 2013
• Jurisdiction: Prince Edward Island
• Citations: (2014), 350 Nfld. & P.E.I.R. 83 (PEICA)

Johnston v. Stewart McKelvey (2014), 350 Nfld. & P.E.I.R. 83 (PEICA);

    1088 A.P.R. 83

MLB headnote and full text

Temp. Cite: [2014] Nfld. & P.E.I.R. TBEd. MY.008

Franklin R. Johnston (appellant) v. Stewart Mckelvey Stirling Scales, formerly known as Scales, Ghiz, Jenkins and McQuaid, a Law Firm, and Alan K. Scales (respondent)

(S1-CA-1255; 2014 PECA 8)

Indexed As: Johnston v. Stewart McKelvey Stirling Scales

Prince Edward Island Court of Appeal

Matheson, C.J.P.E.I., Murphy and Cheverie, JJ.A.

May 12, 2014.

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 (a shopping mall) 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, in a decision reported (2012), 331 Nfld. & P.E.I.R. 101; 1027 A.P.R. 101, allowed the application and dismissed the plaintiff's claim on three grounds: a. pursuant to the summary judgment rule, there being no genuine issue for trial; b. on the basis of Rule 24.01, for delay and want of prosecution; and c. it was an abuse of the court's process for failure to take reasonable steps to move the case forward and to bring it to trial. The plaintiff appealed the dismissal of his claim and a decision by the motions judge refusing to recuse himself from hearing the motion.

The Prince Edward Island Court of Appeal dismissed the appeal.

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - 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 moved to have the action dismissed - The plaintiff brought a recusal motion, alleging a reasonable apprehension of bias (i.e., because the motions judge had participated in a Law Society investigation committee in 1985-86 respecting a complaint against Scales and the judge had heard earlier motions filed by other defendants in the action and decided in their favour) - The motions judge refused to recuse himself - The plaintiff appealed - The Prince Edward Island Court of Appeal dismissed the appeal - The motions judge made no overriding and palpable error in exercising his discretion and his decision was not based on incorrect principles or a misapprehension of a legal issue - Here, the passage of time, the judge's lack of recollection and the dismissal of the discipline matter were significant factors - There was no indication that hearing the prior motions would make him impartial in hearing this matter - See paragraphs 13 to 40.

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) - A motions judge 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 - The plaintiff appealed - The Prince Edward Island Court of Appeal dismissed the appeal - The motions judge made no reviewable error - See paragraphs 60 to 69.

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 - The plaintiff sued the defendants alleging a civil conspiracy - The defendants applied for summary judgment - A motions judge dismissed the claim in its entirety, holding that the defendants proved there was no genuine issue for trial and the plaintiff failed to prove that his claim was one with a real chance of success - The plaintiff appealed, arguing that the motions judge erred in granting summary judgment without specifically addressing the triable issue of breach of fiduciary duty - The Prince Edward Island Court of Appeal rejected the plaintiff's argument - Breach of fiduciary duty was not properly pleaded as an independent, actionable wrong - The allegations of breach of fiduciary duty and civil conspiracy were effectively merged, and dismissal of one claim for lack of evidence necessitated dismissal of the other - The plaintiff basically responded to the summary judgment with assertions, not evidence and, therefore, failed to prove his claim was one with a real chance of success - See paragraphs 41 to 59.

Cases Noticed:

Johnston, Franklin R. and CHD Investments Inc. v. Government of Prince Edward Island, 1995 CanLII 3484 (P.E.I.S.C.), refd to. [para. 5].

MacKinnon v. MacKinnon et al. (2001), 203 Nfld. & P.E.I.R. 355; 610 A.P.R. 355; 2001 PESCAD 20, refd to. [para. 23].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201; 2003 SCC 45, refd to. [para. 24].

Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 25].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 26].

Hawkes v. Human Rights Commission (P.E.I.) et al. (2013), 334 Nfld. & P.E.I.R. 343; 1037 A.P.R. 343; 2013 PECA 3, refd to. [para. 27].

Workers' Compensation Board (P.E.I.) v. Mullen (2011), 308 Nfld. & P.E.I.R. 44; 958 A.P.R. 44; 2011 PECA 10, refd to. [para. 27].

R. v. Novak (P.) (1995), 59 B.C.A.C. 152; 98 W.A.C. 152; 1995 CanLII 2024 (C.A.), refd to. [para. 35].

R. v. Werner, 2005 NWTCA 05, refd to. [para. 35].

R. v. Dunn (J.L.) (1996), 138 Nfld. & P.E.I.R. 46; 431 A.P.R.; 1996 CanLII 3702 (P.E.I.S.C.T.D.), refd to. [para. 35].

Seaway Trust Co. et al. v. Markle et al. 1998), 76 O.T.C. 81; 1998 CarswellOnt. 3441 (Gen. Div.), refd to. [para. 37].

Kelly v. Canada (Attorney General) et al. (2010), 301 Nfld. & P.E.I.R. 317; 2010 PECA 17, refd to. [para. 43].

Vail et al. v. Workers' Compensation Board (P.E.I.) et al. (2012), 326 Nfld. & P.E.I.R. 78; 1012 A.P.R. 78; 2012 PECA 18, refd to. [para. 43].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [para. 43].

Abegweit Potatoes Ltd. v. Read (J.B.) Marketing Inc. et al. (2003), 227 Nfld. & P.E.I.R. 151; 677 A.P.R. 151; 2003 PESCAD 24, refd to. [para. 43].

J.B. Read Marketing Inc. v. Maersk Inc. - see Abegweit Potatoes Ltd. v. Read (J.B.) Marketing Inc. et al.

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 43].

Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423; 247 N.R. 97; 126 O.A.C. 1, refd to. [para. 44].

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. 45].

Coast-To-Coast Industrial Development Co. v. 1570706 Ontario Inc. et al., [2005] O.T.C. Uned. 471; 2005 CanLII 18292, refd to. [para. 46].

Chaudhry v. Falconer Charney LLP, 2013 ONSC 6175, refd to. [para. 47].

Anderson v. Macor et al., [2005] A.R. Uned. 926; 2005 ABQB 914, refd to. [para. 49].

Bond Street Properties Inc. v. Alberta Permit Pro et al., [2010] A.R. Uned. 480; 2010 ABQB 416, refd to. [para. 50].

Bank of Montreal v. Tortora et al. (2010), 287 B.C.A.C. 14; 485 W.A.C. 14; 2010 BCCA 139, refd to. [para. 52].

Normart Management Ltd. v. West Hill Redevelopment Co. et al. (1996), 16 O.T.C. 63; 30 O.R.(3d) 531; 1996 CanLII 8210 (Gen. Div.), refd to. [para. 53].

K.M. v. H.M., [1992] 3 S.C.R. 3; 142 N.R. 321; 57 O.A.C. 321, refd to. [para. 64].

Woodheath Developments Ltd. v. Goldman (2003), 175 O.A.C. 259; 66 O.R.(3d) 731 (Div. Ct.), refd to. [para. 64].

Cassibo v. Bacso [2010] O.T.C. Uned. 6435; 2010 ONSC 6435, refd to. [para. 64].

Faris v. Eftimovski et al. (2013), 306 O.A.C. 264; 2013 ONCA 360, refd to. [para. 67].

Nissar v. Toronto Transit Commission (2013), 309 O.A.C. 8; 2013 ONCA 361, refd to. [para. 67].

Authors and Works Noticed:

Gorman, Wayne, Reasonable Apprehension of Judicial Bias in Trial Proceedings, in Criminal Law Quarterly (2009), vol. 55, generally [para. 36].

Perrell, Paul, The Disqualification of Judges and Judgments on the Grounds of Bias or Reasonable Apprehension of Bias (2004), 29 Adv. Q. 102, p. 114 [para. 36].

Counsel:

E.J. Mockler, Q.C., and Kevin C. Toner, for the appellant;

John W. Hennessey, Q.C., and D. Shannon Farrell, for the respondent.

This appeal was heard on December 6, 2013, before Matheson, C.J.P.E.I., Murphy and Cheverie, JJ.A. of the Prince Edward Island Court of Appeal. The decision of the court was delivered by Murphy, J.A., on May 12, 2014.