Court hears appeal in mall development case

Ryan Ross
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A businessman who has been fighting a legal battle for more than 20 years was back in court Friday to appeal a lower court's dismissal of his lawsuit over a mall development.

Frank Johnston is suing Alan Scales and law firm Stewart McKelvey Stirling Scales over allegations they conspired to stop him in his attempts to develop a mall in Charlottetown, starting in 1977.

P.E.I. Supreme Court Justice Ben Taylor previously dismissed the case, ruling Johnston didn't show there was an issue that required a trial.

Johnston's lawyer Kevin Toner argued Taylor should have recused himself from hearing the case because of his involvement in a Law Society of P.E.I. complaint Johnston filed against Scales before Taylor was a judge. Taylor chose not to recuse himself.

Johnston originally named the Charlottetown Area Development Corporation, David Darby, Fred Hyndman, Dyne Holdings and Mike Arnold as other defendants, but he eventually discontinued the actions against them. His original claim is dated Dec. 15, 1992, but the case has dragged on for years.

Since then several people who were involved in the case died, including Johnston's lawyer and former premier Joe Ghiz.

Stewart McKelvey Stirling Scales was formerly known as Scales, Ghiz, Jenkins and McQuaid.

Toner also told the appeal judges that he didn't think allowing the claim to proceed would present a situation where the defendants were prejudiced by the delay in the proceedings.

There was a lot of documentary evidence on which the case could be tried, Toner said.

Shannon Farrell, one of the defendants' lawyers, argued Taylor gave thorough consideration before deciding not to recuse himself.

John Hennessey, another of the defendants' lawyers, said it wasn't reasonable for the case to proceed on documentary evidence.

To show how long the case has been dragging on, Hennessey told the court Scales is 79-years-old, but was 59 when the case started and 43 when Johnston's development plans started.

Before the appeal hearing got underway, Justice Michele Murphy disclosed that her brother Murray Murphy is a partner in Stewart McKelvey, although she said she held no bias in the case.

She was the only one of three appeals court judges sitting on the hearing.

Chief Justice Jacqueline Matheson, who was replacing one of the regular appeal judges, also disclosed her involvement in the Law Society of P.E.I. complaint against Scales.

Matheson was the law society's secretary and treasurer when Johnston made the complaint, but she said she had no recollection of what happened with it.

Neither judge was seeking consent to hear the appeal, but wanted to notify both sides in case they wanted to make submissions on either judge recusing themselves.

Both sides said they had no issue with the judges hearing the appeal.

After hearing submissions the judges adjourned and Murphy told both sides they shouldn't expect a decision before Christmas.

Organizations: Charlottetown Area Development, Dyne Holdings

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