Frank Johnston's long battle over mall development ends in failed appeal

Ryan Ross
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P.E.I. Court of Appeals Justice Michele Murphy

An Island man who has been fighting a legal battle over a failed mall development in the 1970s has lost an appeal with P.E.I.'s highest court.

Frank Johnston filed his initial statement of claim in 1992 alleging a conspiracy to thwart his plans to build a mall in West Royalty starting in 1977.

CLICK HERE FOR A TIMELINE OF EVENTS IN THIS CASE

P.E.I. Supreme Court Justice Ben Taylor dismissed Johnston's claim in 2012, which led to the appeal.

In a recent unanimous decision, P.E.I. Court of Appeal Justice Michele Murphy wrote that Taylor was right in dismissing the case.

Johnston's claim originally named the Charlottetown Area Development Corporation, law firm Scales, Ghiz, Jenkins and McQuaid, lawyer Alan Scales, Dyne Holdings Ltd., Mike Arnold, David Darby and Fred Hyndman.

Scales, Ghiz, Jenkins and McQuaid is now known as Stewart McKelvey.

Only the law firm and Alan Scales remained as defendants on the claim that Taylor dismissed.

The case has taken so long to work its way through the courts that several people involved have died, including former premier Joe Ghiz and Johnston's lawyer Zia Chishti.

During earlier proceedings, Johnston tried to have Taylor recuse himself, alleging the judge was biased because he was involved in a P.E.I. Law Society complaint investigation against Scales and heard previous motions by other defendants in the case.

In the appeal decision, Murphy wrote that the higher court had no jurisdiction to interfere with Taylor's exercise of discretion unless he erred in principle or based on some unreasonable finding.

Murphy said there was no evidence Taylor couldn't decide the case fairly according to law.

In dismissing the claim, Taylor said Johnston didn't provide evidence that he suffered damages because of the defendants' negligent conduct or breach of contract.

Murphy said Taylor didn't commit any error that would require the appeal court to intervene.

Taylor also ruled Johnston wasn't diligent in moving the case along, which the appeal court upheld, saying there was no reviewable error on that ground.

With the appeal dismissed, the court ordered Johnston to pay $5,000 in costs to the defendants.

rross@theguardian.pe.ca

twitter.com/ryanrross

Organizations: Jenkins and McQuaid, Dyne Holdings, Taylor's

Geographic location: Iceland, West Royalty, Charlottetown

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Recent comments

  • Stand in Truth
    June 21, 2014 - 07:19

    If it's any consolation, true justice (not the "just-us") does not forget.

  • Bob MacDonald
    June 20, 2014 - 15:46

    On January 1, 1979 the P.E.I. government imposes two-year moratorium on malls and stores bigger than 6,000 square metres. This is how we compete on PEI. We get the government to pass laws to either close down our competitors. This is actually the same thing the downtown businesses (Water St. Fish & Chips) tried to do to the chip lady, pass laws to shut her down then pretend they had nothing to do with it.

  • Miggy
    June 20, 2014 - 15:34

    I'd wager that if Franks last name started with an "M" and he was a big city boy, there wouldn't have been an issue 40 years ago..afterall what does a good ole boy from Canavoy know about a vision for the city? Apparently a heck of a lot more than the city boys do. We (Islanders) may have actually have had a mall to go to instead of the ridiculous farce we have now and just maybe an organized attempt to build a mall that would attract big name retailers under one roof versus all these individual stores dotted along the roadway from Canadian Tire down to Home Depot. Vision is something Charlottetown has never had. Good for Frank Johnston for standing up to the "Big" guys

  • enough already
    June 20, 2014 - 14:44

    Frank never had a chance. The local legal mafia saw to that . I wonder how these people go out in public , chow down at the public purse and live with themselves?

    • UPWESTER
      June 21, 2014 - 17:22

      They have no conscience so it is quite easy.

  • unjust action
    June 20, 2014 - 12:41

    Keep your head high Frank. You are a man of integrity, "There is no compromise when it comes to corruption. You have to fight it. A. K. Antony You fought a good fight Frank, you knew what was right and what was wrong! So to add salt to the wound for the fight...they ping you with cost of $5000 to the defendants! WOW

  • reality
    June 20, 2014 - 11:15

    oh!! you poor millionaire !! at least you can afford it !! however the legal system has again proven to be loaded in favor of and paid off by the more powerful

    • huh
      June 20, 2014 - 18:03

      what's the matter, muffin? Can't stand the fact that some people have it in them to make something of themselves?

  • Elaine
    June 20, 2014 - 09:27

    Sorry to hear that you lost Frank. I know this has been an ongoing struggle for years. It's definetly still an old boys club around here.

    • Concerned
      June 20, 2014 - 10:44

      Sorry you lost, you fought a long hard battle against some powerful people around here( at least they think they are powerful) and they can manipulate the little person., if you are not in their click. I hate that kind of society. Good luck in the future.