PRIVY COUNCIL

                        Montreal Street Railway Company

                        Vs.

                                             Normandin
(Viscount Haldane, CJ Lord Buckmaster, Lord Dunedin, Lord Parker Of Waddington

                                   and Sir Arthur Channel. JJ)

                        23.1.1917.

                        JUDGMENT

Sir Arther Channell J.

1.The respondent in this case was plaintiff in an action against the appellant company
in the Superior Court of Quebec to recover damages for personal injuries sustained by
him when travelling in a tramcar of the appellants' by a collision with another tramcar
of the same company. The action was tried before a special jury, who gave a verdict
for the plaintiff for 12,000 dollars on 12th December, 1912 and judgment was given
for the plaintiff for that amount. The appellants on 10th January 1913, took
proceedings to have the judgment set aside on the ground that the jury had not been
duly constituted and was without jurisdiction, and also that one of the jurors was
relative to and was connected by affinity with the plaintiff and was not indifferent
between the parties and also that in the course of the trial communications in reference
to the case passed between the plaintiff his relatives and those who were conducting
his case and that juror and other jurors. At the trial there had been no challenge either
to the array or to any individual juror.

2. These proceedings ultimately failed, and by a judgment of the Superior Court,
sitting as Court of review in Montreal, the judgment in favor of the plaintiff was
upheld. From the judgment of the Court of Review this appeal is brought. The
questions argued before the Board were whether, on the grounds alleged or either of
them, the judgment at the trial ought to have been set aside, and whether the procedure
taken for setting it aside was correct in form. There are also proceedings taken to set
aside the verdict and judgment on the ground that the damages were excessive; but
these are standing over pending the decision of this appeal. What the appellants did on
10th, January 1913, was to present a petition in revocation of judgment known in
Quebec as a requite civile which came on to be heard before Beaudin J. on 27th
January who held without going into the evidence, that requete civile was not the
proper way to raise the question. An appeal from this decision was taken to the Court
of King's Bench (Appeal Side) which Court, by a majority, on 30th October 1913,
allowed the appeal, ordered the reception of the petition and remitted the record to the
Superior Court for proof and hearing of the issues contained in the petition. This proof
and hearing took place on 21st November 1914, when the judge (Monet J.) heard the
evidence and dismissed the petition on the merits. He also disallowed a demurrer by
the respondent to the petition, following, in so doing, the judgment of the King's
Bench (Appeal side). The appellants appealed to the Court of Review from the
decision of Monet, J. disallowing his requite civile, but the respondent did not appeal
from the disallowance of his demurrer. The Court of Review affirmed the judgment of
Monet, J. but a majority of the judges were of opinion that the proceedings were
wrong in form and should have been dismissed on that ground as well as on the
merits. The most important question on the appeal to this Board is as to the effect of
serious irregularities in the preliminary proceedings for constituting the jury panel. On
this point Monet J. found that irregularities or breaches of the provisions of law had
occurred but that the appellants could not avail themselves of them because they had
not proved any prejudice to have been suffered by them in consequence.

3. Very elaborate and minute enactments are contained in the Revised Statutes of
Quebec (Articles 3409, 3411, 3414, 3416, 3418, 3421, 3423, 3426, 3427, 3428, 3429
and 3462) for the constitution of a revising board to revise annually the jury lists, there
being one list of grand and another of petit juries.

4. The municipalities are directed to give notice to the sheriff of new names of
qualified persons and of the deaths, removals or exemptions of those on the old lists.
The board of which the sheriff is a member and apparently president, sit in private to
make their revision, but public notice is given before the lists are sent on to the sheriff.
There are detailed provisions as to the mode of revision, as to initialing alterations and
additions and as to the times of various steps and other matters. The lists so revised
serve for criminal and possibly other purposes, and from the list of grand jurors the list
for trial of civil cases is made. The sheriff by Article 3429, immediately after the
revision of the list, is to notify the prothonotary, who is then to correct his list. The
prothonotary's duties are prescribed by Article 430 and following sections of the
Quebec Code of Civil procedure. He is bound to make a list of the persons qualified to
serve as Jurors in Civil cases by taking from the list of persons qualified to serve as
grand jurors in criminal cases which is deposited in his office the names of all persons
residing within fifteen miles of his office in the order in which such names appear and
he is to revise his list immediately after receiving notice from the sheriff that he has
completed the revision of the grand jury list. Then when an order is made for the trial
of a civil cause by a jury, the names are taken in order from the list to form a panel for
that case, and proceedings are taken for reducing the number for trial of the cause
which appear similar to what is known in this country as striking a jury under the old
practice, still permissible by special order.

5. On the hearing of the requite civile before Monet, J., it was proved that in the year
1912, when the cause was tried, these provisions had for several years been neglected
by the sheriff. There had been no revision at all, and old lists had been used. So far as
the prothonotary was concerned, it is not clear that he in any way neglected his duties,
inasmuch as he used "the list deposited in his office" of grand jurors although that
was, of course, an old one, not duly revised by the sheriff and board. From that
prothonotary's list the names for this jury were duly taken in order. The statutes
contain no enactment as to what is to be the consequence of non-observance of these
provisions. It is contended for the appellants that the consequence is that the trial was
coram non judice and must be treated as a nullity.

6. It is necessary to consider the principles which have been adopted in construing
statutes of this character and the authorities so far as there are any on the particular
question arising here. The question whether provisions in a statute are directory or
imperative has very frequently arisen in this country, but it has been said that no
general rule can be laid down, and that in every case the object of the statutes must be
looked at. The cases on the subject will be found collected in Maxwell on Statutes,
5th. ed. p. 596 and following pages. When the provisions of a statute relate to the
performance of a public duty and the case is such that to hold null and void acts done
in neglect of this duty would work serious general inconvenience or injustice to
persons who have no control over those entrusted with the duty and at the same time
would not promote the main object of the Legislature, it has been the practice to hold
such provisions to be directory only, the neglect of them, though punishable, not
affecting the validity of the acts done. This principle has been applied to provisions for
holding sessions at particular times and places (2 Hale P.C. p. 50 Rex v. Leicester
Justices1 and Parke B in Gwynne v. Burnell2, to provisions as to rates (Reg., v.
Inhabitants of Fordham3 and Le Feuvre v. Millar4; to provisions of the Ballot. Act
Woodward v. Sarsons5 and to justices acting without having taken the prescribed oath,
whose acts are not held invalid (Margate Pier Co. v. Hanna6. In the case now before
the Board it would cause the greatest public inconvenience if it were held that neglect
to observe the provisions of the statute made the verdicts of all juries taken from the
list ipso facto null and void so that no jury trials could be held until a, duly revised list
had been prepared. As to the objects sought to be attained by these elaborate
provisions for the mode of preparing the lists, there seem to be three things aimed at:
first to distribute the burden of jury service equally between all liable to it; secondly to
secure for the use of the Courts effective lists of jurors likely to attend when called,
the names of dead men and absent or exempted men being left out; thirdly, to prevent
the selection of particular individuals for any jury, commonly called; packing. The
duties imposed on the sheriff appear intended for the first and second of these
purposes, and those of the prothonotary for all the three. His duty to take the names in
rotation prevents packing, and his taking the names next after those who last served
distributes the burden. In this case the prothonotary had a list in fact, although an old
one, and the men on it had all been qualified, and probably in most cases remained so.
The names were taken in proper rotation and those ultimately sworn appear all to have
been qualified. As to some of the matters, such as the omission to initial correct
alterations, it would be impossible to hold that these made the whole list null and void.
Having regard to the nature of the sheriff's duties and their object, it seems quite
unnecessary and wrong to hold that the neglect of them makes the list null and void;
and although the prothonotary's neglect, if it had been in the matter of the order of
taking the names, might have resulted in a packed jury, the neglect, if there had been
any in other matters, would be of the same kind as the sheriffs. It does far less harm to
allow cases tried by a jury formed as this one was, with the opportunities there would
be to object to any unqualified man called into the box, to stand good than to hold the
proceedings null and void. So to hold would not, of course, prevent the Courts
granting new trials in cases where there was reason to think that a fair trial had not
been had. The view taken by Monet, J. that he ought not to interfere where the
appellants had shown no prejudice appears very reasonable, and their Lordships are of
opinion that it is also in accordance with the authorities. Taking first the Canadian
cases to which counsel referred. The case most relied on was Grose v. Holmes Electric
Protection Co7. In that case the facts are to be gathered from the judgment which is set
out in full in the report and it seems that there had been somewhat similar neglect by
the sheriff in his duties as to jury lists as in the present case; but the prothonotary also
had in direct breach of the Code, omitted names standing next in order and taken
others lower down. This amounted to a process of packing the jury, and might possibly
have been done with that intention. The minor breaches such as want of initials, are
recited in the judgment, but the facts as a whole clearly show prejudice to use Monet,
J.'s phrase, and show the very mischief to have happened which, it was one of the
objects of the statute to prevent. That a challenge to the array was allowed in that case
is quite consistent with Monet J's. decision. Rex v. Mc Crae8 also quoted, was a case
of murder and after a verdict of guilty the conviction was quashed on grounds going to
the merits, but it was also held by a majority of the Court that the swearing and
inclusion in the jury of a person assigned by mistake, but whose name was not written
in the panel of jurors, and who had not the qualifications required by law for being one
of the jury is illegal and a verdict returned by a jury so composed is null and should be
quashed. This seems to have little to do with the matter, as here no juror is shown to
have been disqualified, and if one had been, probably Monet J., would have held it to
be "prejudice". The difference of opinion amongst the judges in that case arose from
the different views taken as to certain sections of the Criminal Code which have no
application to the case now before the Board. McKay v. Glasgow and London
Insurance Co9., also quoted, merely shows that if a juror is, in fact, interested and has
not been challenged his interest not being known until after the trial, a new trial will
be granted, which obviously has no bearing on the point now under consideration. of
the English cases, Mulcahy v. Reg10, was a writ of error on a criminal conviction taken
to the House of Lords. The trial had taken place in one year under a commission
opened in the previous year. There were lists of jurors duly made out according to the
provisions of the statutes relating to the matter for each of the two years. The jury had
been taken from the list for the first of the two years and it was argued that it should
have been taken from the list for the year in which the trial took place. The judges
were summoned, and questions put to them in the usual way and Willes J. delivered
the opinion of the judges to the effect that the right list had been taken. This is relied
on to show that such provisions are not merely directory, otherwise the elaborate
judgment actually delivered would not have been silent on such a point. But the
question there was merely which list should be taken; each list had been duly made
and no provisions as to the making of lists were broken. But Willes J. does guard
himself against inferences being drawn from his judgment as to points which he had
not expressly dealt with, by saying "Assuming therefore, that this sort of objection by
way of challenge either to the array or the poll is competent in any case it was
unfounded in this." Another case referred to in the argument was Williams v. Great
Western Ry. Co11. which shows that the omission to challenge although the facts were
not known until after the time for challenge is not without effect on the rights of the
parties and a comparison of that case with Doe v. Michael12 shows that while in
England the fact of a jury man being open to challenge, discovered after verdict may
be ground for a new trial, yet it is discretionary with the Court to grant it and it will
not do so when it is of opinion that no prejudice has been done. Their Lordships
therefore are of opinion that the decision of Monet J. on the objection to the verdict
founded on the omission duly to revise the lists was right. Counsel for the appellants
pressed the Board not to weaken any of the safeguards provided by the Legislature for
securing fair and impartial juries, but their Lordships fail to see that the decision of
Monet J. has that effect.

7. As to the next point the juror objected to, was one Hector Barsalou who was brother
of Erasmus Barsalou who was husband of an aunt of the plaintiff. It is obvious that
this is not relationship or affinity. But Erasmus Barsalou had been the tutor or
testamentary guardian of the plaintiff who was at the time of the trial not much over
twenty-one and whose father had died when the plaintiff was an infant so that Erasmus
Barsalou had brought him up. Hector Barsalou no doubt knew the plaintiff fairly well
as his brother's ward but that was all and both he and Erasmus gave evidence
satisfactory to the judge as to interest in the cause. The case as to communications
with the jury broke down. The witnesses who gave the strongest evidence as to it were
claim agents of the appellant company and it was their duty to inform the appellant's
legal advisers at once if during the trial they observed anything which at the time they
really thought serious. During the trial appellants' counsel did have some information
given him which led him to ask Hector Barsalou if he was allied to the plaintiff. He
answered truly that he was not, and the question was not pushed further. The judge
finds emphatically that the appellants proved no case on these points. The Court of
Review adopted the findings of fact of the judge. Their Lordships would require a
very strong case to induce them to differ with the judge who heard the witnesses, and
on a consideration of the evidence they find no such case, but, on the contrary, agree
with the judge.

8. As to the point whether a requete civile was the proper procedure, their Lordships
do not think it open, as neither the decision of the Court of King's Bench nor the
disallowance of the demurrer by Monet. J. was appealed from. The decision of the
King's Bench was not interlocutory for the purpose of an appeal from it under the rule
acted on in this country, as it would have been final if decided the other way. Even if
open, a decision on the point is unnecessary, as, in their Lordships' view the requete
civile failed in proof, and their Lordships would not desire, unless it were necessary to
express any opinion on a question of form and practice in the Quebec Courts, with
which the judges of those Courts are far more familiar than they are. Their Lordships
see no reason for interfering as they were asked to do, with any of the interlocutory
orders as to costs, and they will humbly advise His Majesty that the appeal should be
dismissed with costs.

Appeal dismissed.

Cases Referred.

1. [1827] 7 B. and C. 6

2. [1835] 2 Bing. N.C. 7

3. [1839] 11. Ad. and. E. 73

4. [1857] 26 L. J. (M. C.) 175

5. [1875] L. R. 10. C. P. 733

6. [1819] 3 B. and A1. 266

7. Q. R. 9, S. C. 374

8. Q. R. 16 K. B. 193

9. 32 Lower Canada Jurist, 125

10.  L. R. 3 H L. 306

11.  3 H. and N. 869

12.  [1851] 16 Q. B. 620