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

Ryan Ross
Published on June 20, 2014

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

©Photo special to The Guardian by Heckbert Studios

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.


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.