Supermarchés Jean Labrecque Inc. v. Flamand

L'Heureux‑Dubé J.‑‑This case relates to three complaints laid in 1981 against appellant in the Quebec Labour Court, Amos District, under the provisions of s. 109.1 of the Quebec Labour Code, R.S.Q. c. C‑27, which, apart from exceptions not applicable here, prohibits an employer from using strike‑breakers in a strike or lock‑out, and in such case rendering him liable to the penalties set out in s. 142.1 of the said Code.

The case arose at Val d'Or.

Alleging that respondents had lost jurisdiction by failing to observe the audi alteram partem rule at a hearing held in Montréal on June 10, 1981, and by their inactivity, at the hearing scheduled for June 10, 1981, in Val d'Or, appellant made a motion seeking authorization to issue a writ of summons against the respondents. This motion was granted by the Superior Court (judgment of November 27, 1981, Quebec Superior Court, district of Abitibi), and such judgment was quashed by the Quebec Court of Appeal, 85T‑135 (judgment of January 24, 1985).

Proceedings

The starting‑point of this case can be found in the court record of the hearing held on May 12, 1981:

[TRANSLATION]

AMOS DISTRICT‑‑ROOM No. 3

May 12, 1981

PRESENT: Judge BERNARD LESAGE

FOR THE PLAINTIFF:

BERNARD BELANGER

FOR THE DEFENDANT:

PIERRE BIENVENUE

CLERK: Guy Collin

TYPE OF CASE: 142.1 L.C.

By consent of counsels, the appearance returnable at Val d'Or on May 14, 1981 is heard this day at the Amos Courthouse.

The Court is exempt from reading the complaint.

Plea of not guilty

Trial scheduled for June 10, 1981, pro forma at the Val d'Or Courthouse.

The next stage is set in the court record of the hearing of June 10, 1981, held this time in Montréal, despite the fact that counsel for the parties appeared on the same day at the Val d'Or Courthouse, where the absence of the judge and of the record was noted and nothing was done:

[TRANSLATION]

COURT RECORD

LABOUR COURT‑‑ROOM No. 1

June 10, 1981

PRESENT: JUDGE BERNARD LESAGE

FOR THE COMPLAINANT:

BERNARD BELANGER (Abs.)

FOR THE ACCUSED:

PIERRE BIENVENUE (Abs.)

ANDRE FLAMAND

complainant

v.

LES SUPERMARCHES JEAN LABRECQUE INC.

accused

TRIAL

By decision of the Chief Judge this day's hearing will be held in Montréal rather than at Amos.

The Court schedules 10 a.m. October 15, 1981, at the Amos Courthouse for hearing of the case.

Nothing further was done in Montréal on that day. The decision of the Chief Judge referred to by Judge Lesage was neither entered in the record nor communicated to the parties or their counsel. They learned of it through inquiries.

Neither the parties nor their counsel were given prior notice that there would be a hearing in Montréal on that day: hence the motion seeking authorization to issue a writ of summons alleging the aforesaid facts and proceedings.

Judgments

On a motion for evocation, the Superior Court authorized the issuance of the writ in the following terms:

[TRANSLATION]

J U D G M E N T

This is a motion for authorization to issue a writ of evocation under article 847 C.C.P.;

Whereas at the stage of authorization of the writ the judge, in deciding on the law, must take the facts alleged in the motion as having been proven;

Whereas those facts establish the right of the applicant;

FOR THESE REASONS, THE COURT:

AUTHORIZES the writ of evocation to be issued;

DIRECTS the mis‑en‑cause to stay any proceedings brought pursuant to the complaints in cases Nos. 500‑28‑332, 333, 335 and 336‑81 of the mis‑en‑cause Labour Court and to forward to this Honourable Court the record and all exhibits relating thereto within thirty days, the whole with costs.

ROBERT B. LAFRENIERE

J.S.C.

Respondents appealed from this judgment.

In a unanimous judgment the Court of Appeal allowed the appeal, essentially on the following grounds:

[TRANSLATION] ...appellants, namely Judge Lesage and the Labour Court, could not have lost jurisdiction since the case had not come before Judge Lesage and the Labour Court was acting within its jurisdiction.

The plea of not guilty was submitted to Judge Lesage but he had not been seized of the case.

It is settled law that judges hearing a plea of not guilty are not automatically seized of the case.

...

The setting of a date for the trial is a purely administrative act, not an act of a judicial nature.

The legal position in the case at bar falls under s. 128 of the Labour Code, which gives the Chief Judge of the Labour Court the power to order that sittings of the said Court shall take place elsewhere than at the chief place of the judicial district where the offences occurred.

The entire case turns on the following points:

(2) Did the Labour Court lose jurisdiction when nothing was done on June 10, 1981 at Val d'Or, the date and place where the hearing was to have been held?

Arguments

The submissions made to this Court by appellant were, with some amplification, essentially the same as those presented in the Court of Appeal, focussing principally on the mandatory provisions of s. 128 of the Labour Code and the error made by the Court of Appeal, which viewed the setting of a date for trial as purely administrative, contrary to the subsequent judgment of the Supreme Court of Canada in Franklin v. The Queen, [1985] 1 S.C.R. 293. It further relied on the failure to observe the audi alteram partem rule at the hearing held in Montréal on June 10, 1981, and respondents' loss of jurisdiction for failing to proceed at Val d'Or on the same date.

Respondents, while maintaining that in the circumstances of the case the audi alteram partem rule had not been infringed, also argued that no prejudice had resulted from what they saw as a mere irregularity which could be remedied under the provisions of the Summary Convictions Act, R.S.Q. 1977, c. P‑15, and the Labour Code. Appellant conceded at the hearing that if there was prejudice, it was solely a prejudice in law.

However, respondents did not dispute that the first ground relied upon by the Court of Appeal, characterizing the setting of a trial date as purely administrative, was an error.

They further conceded that s. 128 of the Labour Code [TRANSLATION] "is the provision governing the jurisdiction rationae loci of the Labour Court".

Procedural Context

Appellant made a motion seeking authorization to evoke the case before the Superior Court under the provisions of the Code of Civil Procedure:

846. The Superior Court may, at the demand of one of the parties, evoke before judgment a case pending before a court subject to its superintending and reforming power, or revise a judgment already rendered by such court, in the following cases:

(1) when there is want or excess of jurisdiction;

(2) when the enactment upon which the proceedings have been based or the judgment rendered is null or of no effect;

(3) when the proceedings are affected by some gross irregularity, and there is reason to believe that justice has not been, or will not be done;

(4) when there has been a violation of the law or abuse of authority amounting to fraud and of such a nature as to cause a flagrant injustice.

However, in the cases provided in paragraphs 2, 3 and 4 above, the remedy lies only if, in the particular case, the judgments of the court seized with the proceeding are not susceptible of appeal.

The Quebec Labour Code contains a privative clause, which at the time the case arose read as follows:

139. No action under article 33 of the Code of Civil Procedure, or extraordinary recourse within the meaning of such code, or injunction shall be exercised against any council of arbitration, court of arbitration, arbitrator on grievances, certification agent, labour commissioner or the Court by reason of any act, proceeding or decision relating to the exercise of their functions.

(N.B.: The wording of s. 139 reproduced in the appellant's factum is subsequent to that which was in effect when the complaints were filed, and contains in limine the following qualification: "Except on a question of jurisdiction".)

Though the provisions of s. 139 then in effect seem more stringent, it is now well established that such a privative clause does not exclude the superintending and reforming power of a superior court in cases of want or excess of jurisdiction (Alliance des professeurs catholiques de Montréal v. Quebec Labour Relations Board, [1953] 2 S.C.R. 140; Québec Téléphone v. Bell Telephone Co. of Canada, [1972] S.C.R. 182; Attorney General of Quebec v. Farrah, [1978] 2 S.C.R. 638).

It is not at issue here that evocation is the proper remedy in cases of want or excess of jurisdiction by an administrative or quasi‑judicial tribunal, even though the proceedings are of a penal nature originating in a breach of a Quebec statute, the Labour Code (Roy v. La Reine, [1974] C.A. 200; see Jean‑Claude Hébert, "Le pouvoir de surveillance en matière pénale et criminelle" (1974), 34 R. du B. 411).

In a chapter entitled "Labour Court" (consisting of ss. 112 to 137 inclusive), s. 118 of the Labour Code prescribes the jurisdiction of the Labour Court as follows:

118. In addition to the other matters which are declared by law to be within its competence, such Court shall have jurisdiction, to the exclusion of any other Court, to hear and decide

(a) in appeal, as to any decision of a labour commissioner who closes a case, and as to any decision of the labour commissioner‑general made under section 8 or section 9;

(b) in first instance, in any penal prosecution brought under this Code.

Section 121 states:

121. Every member of the Court shall be competent to hear and decide alone any matter submitted to the Court.

Judge Lesage of the Labour Court thus had jurisdiction to hear the complaints in question at first instance.

Such complaints under s. 147 of the Code are heard under the Summary Convictions Act.

The Summary Convictions Act, in accord with the Criminal Code , makes no provision for appeals from interlocutory judgments in penal matters. That is the interpretation given to its s. 75 (Nepton v. Procureur général du Québec, Que. C.A., No. 200‑10‑000111‑794, February 24, 1981; United Aircraft Canada Ltd. v. La Reine, Mtl. Q.B., No. 500‑27‑011293‑73, May 9, 1974).

On the other hand, art. 847 C.C.P. then in effect (now repealed) provided for a two‑stage procedure:

847. The motion seeking authorization to exercise the recourse provided in this chapter must be served upon the judge or functionary who was seized of the case, and upon the parties, with a notice of the date and place of presentation.

The judge to whom the motion is presented cannot authorize the issuance of a writ of summons unless he is of opinion that the facts alleged justify the conclusions sought.

In case of urgency, the judge may, before authorizing the issuance of the writ, order the suspension of all proceedings in the case, but such suspension cannot in any case continue beyond ten days.

The motion before the judge of the Superior Court was to authorize the issuance of a writ of summons. For this purpose he had to come to the conclusion that the facts alleged in the motion justified the conclusions sought. Finding that they did, he authorized the issuance of the writ. It is only at the second stage, once the writ is issued, that the trial is held.

The Court of Appeal took the opposite view, holding that the facts alleged showed mere irregularities which could be remedied and which did not go to jurisdiction.

Discussion

The principles involved here need to be re‑examined.

In penal matters, the rule is that the case shall be tried in the judicial district where the case has arisen, unless there are specific provisions to the contrary (R. v. Ponton (1898), 2 C.C.C. 192 (Ont. H.C.); R. v. Lynn (1910), 19 C.C.C. 129 (Sask. S.C. en banc); R. v. Paquette, [1969] R.L. 198 (Mtl. Mun. Ct.); Dumont Express (1962) Ltée v. Perron, [1974] C.A. 67).

This rule is incorporated in s. 4 of the Summary Convictions Act of Quebec (subject to the exceptions mentioned in s. 13.2, which are not applicable here):

4. The complaint or information shall be heard, tried, determined and adjudged by the justice of the peace for the territorial division where the matter of the complaint or information arose, and in such territorial division.

Under s. 147 of the Labour Code, the Summary Convictions Act applies to the complaints at issue:

147. The penalties contemplated by this act shall be imposed upon summary proceeding pursuant to the Summary Convictions Act (chapter P‑15).

Part II of the said act shall apply to such proceedings.

However, s. 128 of the same Code, which must take priority here and which contains a similar rule, is more specific if not more restrictive in this regard:

128. The case shall be tried at the chief place of the judicial district where the case has arisen, unless the parties agree otherwise or, for reasons of public interest, the chief judge decides that such case shall be tried elsewhere.

The Court may sit on any juridical day of the year.

The complaints in question arose in the judicial district of Abitibi (the "chief place" of which is Amos), and more specifically in the town of Val d'Or. That is not in dispute.

Appellant was summoned to appear at Val d'Or on May 14, 1981, and by consent of the parties appeared at Amos on May 12, 1981, before Judge Bernard Lesage of the Labour Court, whose jurisdiction to try the complaints is not in dispute. On that date and at that place appellant entered a plea of not guilty and the trial was set pro forma for June 10, 1981, at the Val d'Or Courthouse this time, as entered in the court record of May 12, 1981.

Up to that point, s. 128 of the Labour Code had been observed in all respects.

It is also quite clear that under that section the Chief Judge of the Labour Court had the power "for reasons of public interest" to decide that the case would be tried "elsewhere".

On the other hand, except for what was said about it by Judge Lesage, the decision of the Chief Judge was not entered in the record of the case nor communicated to the parties, and the latter were given no notice to attend the hearing on June 10 in Montréal. A fortiori, the reasons underlying that decision are also unknown.

Turgeon J.A., delivering the judgment of the Court of Appeal, implied such reasons when he wrote:

[TRANSLATION] It is true that the sitting of the Labour Court at Montréal on June 10, 1981 took place in the absence of the parties and of their counsel. Leaving Montréal to go to Val d'Or and summoning the parties solely in order to set the date of the trial did not appear to the Chief Judge to be proper judicial administration. [Emphasis added.]

He went on:

[TRANSLATION] On a question of adjournment, the Summary Convictions Act (S.C.A.) no longer contains the prohibition against adjourning for more than fifteen days without the consent of the parties. This provision has disappeared and the Court has complete discretion to decide on an adjournment. Indeed, section 45(1) of the S.C.A. reads as follows:

"45.1. Before or during the hearing upon any information or complaint the justice of the peace may, in his discretion, adjourn the hearing of the case."

This is an important difference between the S.C.A. and Part XXIV of the Criminal Code as regards adjournments.

Sections 65 and 66 of the S.C.A. invite this Court to set aside formalism and to dismiss irregularities affecting substance and form. It has to be borne in mind that originally this Act was intended for justices of the peace who generally had no legal training.

...

In Richstone Bakeries Inc. v. La Cour des sessions de la paix et le Procureur général de la province de Québec, 1966, Q.B. 866, specifically at pp. 870 and 871, it was decided that when an accused denies his guilt at the appearance it is only a statement by him that he wishes a trial. Such a denial is a preliminary measure and the trial only begins when the accused confronts the witnesses for the prosecution. [Emphasis added.]

This last statement is clearly wrong. It is now settled law, and respondents no longer dispute this, that once a plea has been entered, since the accused is placed in jeopardy from that moment, the trial commences (Morin v. The Queen (1890), 18 S.C.R. 407; R. v. Hatherley (1971), 4 C.C.C. (2d) 242 (Ont. C.A.); R. v. Blair and Karashowsky (1975), 25 C.C.C. (2d) 47 (Alta. C.A.); R. v. Riddle, [1980] 1 S.C.R. 380; Petersen v. The Queen, [1982] 2 S.C.R. 493). In that last case McIntyre J., delivering the unanimous judgment of the Court, wrote at p. 501:

I am also of the opinion that the appellant was placed in jeopardy and that his trial commenced upon the informations. He had pleaded not guilty and he stood prepared to meet the Crown's case. In Riddle, the Crown's case was dismissed because the Crown, despite the refusal of an adjournment and the Court's direction that the trial proceed, declined to call evidence. There was accordingly no case for the accused to meet and the acquittal resulted. In that case Dickson J. said, at p. 398:

In my view, a criminal trial commences and an accused is normally in jeopardy from the moment issue is joined before a judge having jurisdiction and the prosecution is called upon to present its case in court. The person accused continues in jeopardy until final determination of the matter by rendering of the verdict.

I do not consider that Dickson J. imposed by those words a requirement that some direct invitation must be issued to the Crown to call evidence before it could be said that the issue had been joined and the accused placed in jeopardy. The authorities he relied upon in his reasons support the proposition that once a plea is entered before a court of competent jurisdiction the accused is in jeopardy. [Emphasis added.]

In view of the above, it may be assumed for the purposes of the appeal at bar, taking into account the court record of the hearing held in Montréal on June 10, 1981, as it stands, that the Chief Judge of the Labour Court made the decision attributed to him and that this decision was presumably made for administrative reasons. It was however delivered without reasons. A fortiori, the "reasons of public interest" prescribed by s. 128 of the Code are not mentioned, Judge Lesage not even alluding to them in what he reports of it. These reasons are no more evident.

Since the general rule is that a case shall be tried in the chief place of the judicial district where the case arose, it is only by exception, and in accordance with s. 128 of the Code for reasons of public interest, that the Chief Judge can decide that the case will be tried elsewhere (in the instant case, in Montréal, rather than Val d'Or or Amos).

The Labour Court is an administrative tribunal created by statute. Its powers are therefore restricted by its enabling Act. Accordingly, the Court and a judge of that Court must comply strictly with the powers conferred on them by that Act, otherwise want or excess of jurisdiction will result (Pépin and Ouellette, Principes de contentieux administratif (2e éd. 1982), at p. 19).

While it is true that, in the absence of legislation to the contrary, neither judicial tribunals nor administrative or quasi‑judicial bodies are bound to give reasons for their decisions (Canadian Arsenals Ltd. v. Canadian Labour Relations Board, [1979] 2 F.C. 393 (C.A.); Macdonald v. The Queen, [1977] 2 S.C.R. 665; Northwestern Utilities Ltd. v. City of Edmonton, [1979] 1 S.C.R. 684), when a duty to give reasons is created by legislation it seems, according to certain cases that, the absence of reasons vitiates the decision and constitutes an excess of jurisdiction (Comité d'appel du Bureau provincial de médecine v. Chèvrefils, [1974] C.A. 123; Proulx v. Public Service Staff Relations Board, [1978] 2 F.C. 133 (C.A.); Control Data Canada Ltée v. Lalancette, [1983] C.A. 129, reversed in this Court sub nom. Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476, but on another point, and the decision was regarded as having been given with reasons; for a discussion of this see Denis Lemieux, Le contrôle judiciaire de l'action gouvernementale (Publications CCH/FM, 1986), paras. 60‑005 et seq.; Marie‑Claude Lévesque‑Crevier, "La motivation en droit administratif" (1980), 40 R. du B. 535).

Does section 128 of the Code impose on the Chief Judge a duty to give reasons for his decision to try the case elsewhere? I do not think that, for the purposes of this appeal, it is essential to answer this question. Indeed, though mentioning the absence of reasons, the parties did not focus their argument on this specific point. In view of the conclusions I have reached, I will add no further comment on this point.

This rule is so fundamental in our legal system that I do not think there is any necessity to discuss it at length.

The right of a party to be heard, especially when that party is in the dock, long antedates the Canadian Charter of Rights and Freedoms , which was not relied upon here, if only because it was not in effect at the time this case began.

Respect for the rule of law goes back to the origins of our democratic institutions and is part of our most cherished legal heritage.

Even where there is no specific reference to the audi alteram partem rule in the legislation, as in s. 128 of the Labour Code, and bearing in mind that the setting of the date and place of a trial is not a purely administrative act, as noted above, failing to give the parties or their counsel of record prior notice of the date and place of hearing in Montréal on June 10, 1981 is not consistent with that fundamental rule, implicit in any proceedings of a judicial or quasi‑judicial nature. The decision made by the Chief Judge, in the absence of the parties and without prior notice, to hold the hearing in Mont‑ réal on June 10, 1981, rather than in Amos or Val d'Or, does not either respect that rule.

In this regard the commentators Dussault and Borgeat write, in the Administrative Law: A Treatise (2nd ed. 1985), vol. I (at pp. 125 and 276):

[The] lack of procedural unity does not prevent certain principles of "natural justice" from being applied to most "administrative tribunals": the rule audi alteram partem, which compels a court required to make a decision of a judicial or quasi‑judicial nature to allow the person in question to be heard in order to present his or her point of view. This rule is implicitly imposed upon "administrative tribunals"305 and, since the Nicholson decision, the duty to act fairly is also binding upon them. Similarly, there is a rule by which members of these tribunals must be unbiased and impartial. In addition, the obligation to provide reasons for their decisions is frequently found in the Acts setting up these administrative tribunals. Finally, the Charter of Rights and Freedoms and quasi‑constitutional legislation of this sort also contain certain provisions compelling administrative tribunals to respect procedural guarantees.

‑‑‑‑‑‑

305 The Supreme Court of Canada reached this conclusion in the famous cases of L'Alliance des professeurs catholiques de Montréal v. Labour Relations Board of Quebec, [1953] 2 S.C.R. 140 and Toronto Newspaper Guild, Local 87 v. Globe Printing Co., [1953] 2 S.C.R. 18. However, it should be noted that there are more and more statutes containing specific provisions requiring "administrative tribunals" to obey this rule. See the Act respecting the Social Affairs Commission, supra, note 273, s. 38, the Act to promote the parole of inmates, supra, note 281, s. 32 and the Official Languages Act, supra, note 226, s. 28.

...

...when an agency makes a decision of a judicial nature, normally it must not only hold public hearings but also reduce the decision to writing, provide reasons for it, communicate it to the parties and facilitate access to it for everyone affected. Moreover, in the course of the proceeding, the agency must allow persons whose rights and interests may be affected, to be heard and to present their points of view. This assumes that these persons must be notified of the date of the inquiry or of the hearing within a reasonable period, that they may seek an adjournment for serious reasons and, also, that they may be represented by a competent person with the power to examine or cross‑examine.

In the second edition of his book Droit administratif (1985), Professor Patrice Garant explains the reasons why notice must be given when a case is heard before an administrative tribunal (at p. 721):

[TRANSLATION] The caselaw requires that such notice to the individual should contain whatever is necessary for him to present a defence or to make valid representations. He must not be taken by surprise. It follows from this that the notice should not be too vague.

On the tribunal's duty to give the individual an opportunity to present his case, Professor Garant writes (at p. 725):

[TRANSLATION] Having an opportunity to be heard means essentially, in the words of Pigeon J., having "the right to present his case". The courts have held that the individual in question must at a minimum have an opportunity to make his representations or put forward his defence, whatever the method used: the quasi‑judicial tribunal must accordingly be able to hear the individual's point of view.

Finally, in de Smith's Judicial Review of Administrative Action (4th ed. 1980), we find the following comments (at pp. 196, 197 and 200):

Natural justice generally requires that persons liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed, so that they may be in a position:

(a) to make representations on their own behalf; or

(b) to appear at a hearing or inquiry (if one is to be held); and

(c) effectively to prepare their own case and to answer the case (if any) they have to meet.

...

If, as is usual, the reason for imposing an obligation to give prior notice is to afford those affected an opportunity to make representations, the notice must be served in sufficient time to enable those representations to be made effectively. If an oral hearing is to be held, the time and place must be properly notified.

...

What the audi alteram partem rule guarantees is an adequate opportunity to appear and be heard (subject to the proviso that in some situations prior notice may be valid although not in fact received).

A departure from this rule of natural justice has been held to constitute a want or excess of jurisdiction.

Thus in Syndicat des employés du Centre hospitalier Robert‑Giffard et annexes (C.S.N.) v. Syndicat professionnel des infirmières et infirmiers de Québec (S.P.I.I.Q.), [1979] C.A. 323, Mayrand J.A. said at p. 326:

[TRANSLATION] Natural justice required that the respondents should have an opportunity to be heard before the court of arbitration whose award could affect their rights. In the circumstances the infringement of the audi alteram partem rule constituted an excess of jurisdiction giving rise to evocation: Alliance des professeurs catholiques de Montréal v. L.R.B. of Quebec, [1953] 2 S.C.R. 140; Lalonde Automobile Ltée v. Naylor, [1974] C.A. 489.

(See also Denis Lemieux, op. cit., para. 30‑060, and the authorities cited by him.)

It is significant that the Labour Code in the chapter relating to the Labour Court makes such a rule mandatory when that court sits in appeal from a decision of the labour arbitrators:

132. Before rendering any decision on an appeal, the Court shall allow the parties to be heard and for such purpose give them, in such manner as it deems proper, a notice of at least five clear days of the day and hour when and the place where they may be heard.

If an interested party so called does not present himself or refuses to be heard at the sitting fixed for such purpose or at an adjournment of such sitting, the Court may nevertheless proceed with the trial of the matter, and no judicial recourse shall be based on the fact that the Court so proceeded in the absence of such party.

In penal matters, the duty to hear the parties has never been doubted.

Article 846 C.C.P. makes of it one of the criteria for the exercise of the superintending and reforming power of the superior courts, where there is no appeal or other appropriate remedy, as is the case here.

While it is true that any infringement of the audi alteram partem rule will not necessarily or automatically attract the exercise of this reforming power, since the remedy remains a discretionary one, it will be denied primarily when the situation thus created can be otherwise remedied.

Harelkin v. University of Regina, [1979] 2 S.C.R. 561, is a good example of this. In a majority judgment of this Court, Beetz J. made an exhaustive study of the question, though from the standpoint of the common law and not with reference to art. 846 C.C.P.

He recalled what Lord Devlin said in Ridge v. Baldwin, [1964] A.C. 40 (H.L.), at p. 584:

Such tribunals must always be subject to the supervisory jurisdiction of the High Court. But it does not by any means follow that a defect of natural justice sufficiently grave to be a ground for quashing the resulting decision inevitably leads, as in the present case, to a declaration that the decision is void ab initio. It is necessary always to bear in mind the distinction so clearly drawn by Lord Sumner in Rex v. Nat Bell Liquors Ltd. between a wrong exercise of jurisdiction which a judge has and a usurpation of a jurisdiction which he has not. If there is no jurisdiction, the decision is a nullity, whether the court quashes or not. If there is jurisdiction but there has been a miscarriage of natural justice, the decision stands good until quashed. The occurrence of a miscarriage does not require the court to quash if it is satisfied that justice can be done in some other way.

The Superior Court judge held, in exercising his discretion as to whether the motion should be granted, that in the circumstances of the case at bar authorization to issue the writ should be given.

Respondents advanced two arguments on this aspect of the case, namely [TRANSLATION] "that no prejudice ensued and that, secondly, it could be easily corrected at the first opportunity".

On this latter point, the judgment setting the date of trial had been rendered. In the absence of a right of appeal, I do not see how appellant could have had that judgment reviewed in order to present its case and make representations. Therefore, there was no other proper remedy.

On the first point, the absence of any real and present prejudice, which is not disputed by appellant, can in no way remedy such an infringement.

Le Dain J., in a unanimous judgment of this Court in Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, settled very clearly this particular point. He wrote, at pp. 660‑61:

Certainly a failure to afford a fair hearing, which is the very essence of the duty to act fairly, can never of itself be regarded as not of "sufficient substance" unless it be because of its perceived effect on the result or, in other words, the actual prejudice caused by it. If this be a correct view of the implications of the approach of the majority of the British Columbia Court of Appeal to the issue of procedural fairness in this case, I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing. [Emphasis added.]

In my view, since Cardinal dealt with a prerogative writ in administrative law matters, the principles stated therein are very relevant here.

In fact, it could not be argued here that, as it was purely a matter of setting a trial date, since the date previously agreed upon was only set pro forma, the failure to observe natural justice was not of sufficient seriousness to warrant authorizing the writ to be issued.

It should be recalled that appellant was here facing penal charges which rendered it liable to substantial penalties.

On the other hand, every litigant, whatever the importance of the proceedings in which he is a party, but more so when facing charges of a penal nature, is entitled to expect both his rights to be protected and the proceedings to comply with the relevant legislation.

While it is true, as respondents pointed out, that the Chief Judge had the power to set the date and place where the case would be tried, this discretion does not extend to depriving the parties of their basic right to be present at the hearing, to be heard and to make representations. These principles of natural justice had to be observed as much with respect to the decision to hold the hearings in Montréal rather than in Amos or Val d'Or as with respect to the decision rendered on the same day on which the date of trial was set.

There will be cases in which the date set for the trial or the place where the case will be tried will affect the accused's right to a full answer and defence. This will be true, for example, when on the date set for trial the accused is hospitalized or an important witness is absent. It is important for the individual to have the opportunity to make his case before the judge or the tribunal exercise their discretion in the matter.

I therefore cannot agree with respondents' view on this point.

I conclude that the hearing held on June 10, 1981 in Montréal, without prior notice to the parties and in their absence, and the decision rendered at that time, are void just as is the decision rendered by the Chief Judge to hold the hearing in Montréal rather than Amos or Val d'Or.

Accordingly, I consider that the Superior Court was correct in concluding, at the stage of authorizing the issuance of a writ of summons that the facts alleged justified the conclusions sought as regards the hearing held in Montréal on June 10, 1981.

This leads to the consideration of appellant's third argument, which, this time, concerns the hearing of June 10, 1981, at the Val d'Or Courthouse, the date and place set pro forma for the trial.

The question before this Court can then be stated as follows:

Does the failure to proceed at Val d'Or on June 10, 1981, where "nothing was done", amount to a loss of jurisdiction of the tribunal or of the judge?

The Court of Appeal, which regarded the setting of the trial date as a purely administrative act, answered this question in the negative.

Does the fact that such is not the case (Franklin v. The Queen, supra), but that it is rather a procedural defect, warrant a different answer?

I should note in passing that the distinction which formerly existed between loss of jurisdiction over the person and over the offence has been questioned (Doyle v. The Queen, [1977] 1 S.C.R. 597). That distinction is not at issue here.

To go back to the question at issue, Trenholm v. Attorney‑General of Ontario, [1940] S.C.R. 301, established that a procedural defect exists when the date of the adjournment or remand passes "without anything happening". This is the case here, as nothing happened at Val d'Or on June 10, 1981, the date and place to which the trial was adjourned and on which it was to be held, the hearing in Montréal on the same day having been held without jurisdiction of the judge or of the tribunal.

In Doyle v. The Queen, supra, this Court referred to Trenholm as follows, at pp. 608‑9:

...the principle governing the present case is to be derived from the judgment of this Court in Trenholm v. Attorney General of Ontario, [1940] S.C.R. 303, where the date to which the appellant had been remanded had passed with nothing having been done and it was held that the information lapsed and no further process could be taken pursuant to it.

and at p. 610:

Much of the difficulty in this area has, I think, been occasioned by the use of the phrase "jurisdiction over the offence". In my opinion the word "offence" as used in this phrase must be construed as meaning the "information" charging the accused with the offence and the result of an error such as occurred in the present case is, in my view, that that information is to be treated as if it had never been laid. This in no way affects the jurisdiction of the court in relation to the "offence" itself so as to preclude the laying of another information in the same jurisdiction charging the same offence. This result, I think, follows from the case of Trenholm v. Attorney General of Ontario, supra.

More recently, in R. v. Krannenburg, [1980] 1 S.C.R. 1053, in which the court had not sat and nothing had been done at the time and place set for trial, Dickson J. (as he then was) commented on Trenholm and Doyle (at pp. 1056, 1058‑59 and 1061):

In a more recent judgment of this Court, Doyle v. The Queen, [1977] 1 S.C.R. 597, Trenholm was affirmed. Where a court fails to proceed with a hearing, jurisdiction over the information charging the accused with the offence is lost, and thereafter "that information is to be treated as if it had never been laid": per Ritchie J. at p. 610.

...

...Doyle did nothing to erode the view expressed in Trenholm that when the assigned date passes, without action taken, jurisdiction is lost. Doyle had the effect of recognizing a like loss of jurisdiction when there has been an irregular adjournment or remand.

...

The problem in the instant case was not one of contravention of the requisities [sic] of the Code relating to adjournments. There was no failure to comply with any provision of the Code. The imbroglio arose because the court failed to appear and nothing was done at the time and place set for trial.

In the case of Doyle, the Court evidenced, as I have indicated, a willingness to abandon the distinction between loss of jurisdiction over the person (as in improper adjournments) and loss of jurisdiction over the offence (as in a failure to proceed). Section 440.1, however, cannot be interpreted as embracing both eventualities. It is not so worded as to save jurisdiction over the offence when the court has not acted. The Trenholm decision, affirmed in Doyle, governs this appeal.

The decision of the Labour Court in Caron v. Michaud, [1981] T.T. 186, is to the same effect (at p. 194):

[TRANSLATION] However, the foregoing decisions dealing with both indictable offences and summary offences are not subject to the eight‑day deadline as provided in these cases. Those decisions are based on the fact that failure to act on the day fixed means there ceases to be anything to be tried or any charge, and this leads to the serious consequence of loss of jurisdiction over the offence, specifically over the information.

It thus appears that the failure of the court to act in the case at bar leads to a loss of jurisdiction and the first objection of the accused is accordingly correct.

Though in R. v. Chabot, [1980] 2 S.C.R. 985, the Court noted that reasonable latitude in procedural matters is desirable in proceedings arising on indictment, here nothing happened.

While it is true that the stricter requirements on criminal offences cannot be transposed to summary offences, the fact remains that the provisions of the Labour Code and the Summary Convictions Act applicable thereto provide only for remedies to procedural irregularities.

Contrary to what the Court of Appeal held, we are not faced here with an adjournment for more than fifteen days or a discretionary adjournment (s. 45(1) of the Summary Convictions Act), but with a failure to act on the date set for trial, even though that date was only set pro forma.

In addition, this case does not involve irregularities as to substance and form (ss. 65 and 66 of the Summary Convictions Act), but is rather a departure of a fundamental nature which neither the Labour Code nor the Summary Convictions Act covers or purports to cover.

If such a departure as we find here were to be regarded merely as an irregularity of form, one can readily imagine the disastrous consequences that would ensue if, for example, an accused was imprisoned and nothing was done on the day scheduled for his trial.

I accordingly conclude that the failure to proceed on the date set at Val d'Or on June 10, 1981, resulted in respondents' loss of jurisdiction.

For these reasons, I would allow the appeal without costs, quash the judgment of the Court of Appeal and restore the judgment of the Superior Court.