2023 QCCQ 5006, 2023 QCCQ 5006

Kamouna c. Commission des droits de la personne et des droits de la jeunesse 2023 QCCQ 5006 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL TOWN OF MONTRÉAL Civil Division No: 500-32-715581-213 DATE: August 1, 2023 ______________________________________________________________________ BY THE HONOURABLE MAGALI LEWIS ______________________________________________________________________ NIZAR KAMOUNA Plaintiff v.

COMMISSION DES DROITS DE LA PERSONNE ET DES DROITS DE LA JEUNESSE and ROUMIANA JETCHEVA Defendants ______________________________________________________________________ JUDGMENT ON THE COMMISSION DES DROITS DE LA PERSONNE ET DES DROITS DE LA JEUNESSE’S REQUEST FOR DISMISSAL OF NIZAR KAMOUNA’S CLAIM (art. 167 and 168 C.p.c.) ______________________________________________________________________ [ 1 ] On July 7, 2017, Mr.

Kamouna filed a complaint to the Commission des droits de la personne et des droits de la jeunesse (the Commission) to denounce a situation of discrimination he believed he was victim of on the part of his former employer and colleagues. The complaint targeted GE Renewable Energy Canada (GE), Procom Quebec Inc. that Mr. Kamouna identified as GE’s payroll administrator, Dmitry Cherepanov that he identified as Head of Contracts, Michael Cain, Project Manager, and Elena Regal-Zeiger, Senior Project Manager. [ 2 ] In his complaint Mr.

Kamouna described the evolution of his relations with the above-mentioned colleagues and alleged that their behaviours towards him were discriminatory, in violation of his right guaranteed by the Charter to be treated equally, without distinction based on ethnic or national origin, race and/or colour, or religion. [ 3 ] Mr.

Kamouna filed a modified version of his complaint in discrimination with the Commission on December 8, 2017. [1] [ 4 ] Dissatisfied with the conduct and the outcome of the investigation of his complaint carried out by the Commission under the direction of Roumiana Jetcheva, blaming them for failing to investigate and/or conclude on the alleged discrimination on the part of Ms. Regal-Zeiger, Mr. Kamouna filed a lawsuit seeking $15,000 in damages from the Commission and Ms. Jetcheva.

He details his claim as follows: Item Description Damages in CAD$ 1 Moral Damages: Acting in Bad Faith contrary to the Civil code of Quebec , the Quebec Charter of Human Rights and Freedoms $10,000.00 2 Damages which would have been recovered from Mrs Elena REGAL-ZEIGER in the Human Rights Tribunal had the Defendants investigated my complaint against Mrs Regal-Zeiger and enforced the Charter and had the Defendants not abused their power by ignoring my complaint against Mrs Regal-Zeiger altogether in express bias and violation of their functions and obligations. $4,000.00 3 Punitive damages pursuant to the Quebec Charter of Human Rights and Freedoms $500.00 4 Punitive damages in the Act Respecting Access to Documents Held By Public Bodies And The Protection Of Personal Information. $500.00 Provisional damages being claimed is estimated at CAD$ $15,000.00 [ 5 ] The facts that Mr.

Kamouna denounced in his amended complaint to the Commission of December 8, 2017, which concern Ms. Regal-Zieger, are as follows:

Mr Dmitry C. […] told me that Mrs Elena R.Z does not like hearing complaints! [2] Mr Dmitry C warned me that Mrs Elena R.Z’s directed that I should not complain […] [3] On 24 March 2017, Mr Dmitry C instructed me again to fake a claim in millions against the Public Authority and its stakeholders to make-up for GE losses which is the natural result of the severe mismanagement of the project by Mr Dmitry C, Mrs Elena R.Z and Mr Martin Bizzaro [4] . On 28 March 2017 I had a conference call with GE HR Mrs Shannon Millar. I was hopeful that a resolution will be reached.

On 31 March 2017, Mrs Shannon Millar instructed me to work from home as much as possible. […] [5] Mrs Elena R.Z., Mr Dmitry C and Mr Michael C deprived me from having access to the Corporate resources including people, engineers, tools and equipment whereas my colleges who do not share the same faith and race have access to the resources they need to do their work. [6] On 6 June 2017, Mrs Elena R.Z confirmed Mr Dmitry C left GE but things did not improve as Mrs Elena R.Z prevented me from working in the office and did everything she could to treat me differently and less favourably than my colleagues on race and faith grounds. (Reproduction faithful to the original) [ 6 ] The Commission and Ms.

Jetcheva move to have Mr. Kamouna’s claim dismissed on the following grounds: ➢ Immunity from prosecution of the Commission and the members of its staff provided for by

article 68 of the Charter of Human Rights and Freedoms [7] (the Charter ). ➢ Since Mr. Kamouna’s claim stems from his disagreement with the Commission’s conclusions that the evidence gathered during its investigation is insufficient to justify bringing an action in discrimination against his former employers and colleagues before a court, his real appeal is for judicial review. I. the Questions at issue [ 7 ] To decide the Commission and Mrs. Jetcheva’s Motion to Dismiss, the Court will answer the following questions: 1.

Does the immunity which protects the Commission, its members, and staff against any recourse for acts committed in the course of their duties preclude Mr. Kamouna’s recourse? 2. What recourse does a person who is dissatisfied with the outcome of the Commission’s investigation of his complaint have? II.

ANALYSIS [ 8 ] It is a well-established principle that a court must be cautious not to dismiss an action on a preliminary exception unless it is “plain and obvious that it lacks a basis in law.” [8] [ 9 ] The applicable principles to decide an application for dismissal are the following: − The facts alleged in the action are deemed to be true as are the exhibits filed in support thereof, however, not the legal characterization of the facts. − Only the trial judge seized of the merits of a case can determine whether the Plaintiff has met his burden of proof.

If there is a chance that Plaintiff’s allegations could give rise to the conclusions sought, then the Court must allow the action to continue. − The preliminary exception must be decided regardless of the complexity of the questions of law. − In case of doubt, the Court must exercise caution and allow the case to proceed on the merit rather than prematurely dismiss it. [9] [ 10 ] With these criteria in mind, let’s look at the case at point. 1. Does the immunity which protects the Commission, its members, and staff against any recourse for acts committed in the course of their duties preclude Mr.

Kamouna’s recourse? [ 11 ] For the reasons set out below, the Court responds by the affirmative to the question. [ 12 ] In the complaint he filed with the Commission on July 7, 2017, Mr. Kamouna alleged having been the victim of discrimination,

harassment, and reprisals from his former employer and colleagues, based on ethnic or national origin, race and/or colour, as well as religion. After having identified himself as a “British citizen and permanent resident of Canada,” he went on in his complaint explaining that Dmitry Cherepanov hired him to work for GE as “Project Management and Contract Specialist III and Senior Claim Consultant.” [ 13 ] Mr. Kamouna denounced his former employer and colleagues as having “treated [him] differently and less favourably than [his] peers because of [his] national origin (Egypt), race (Arabic) and faith (Muslim)”.

He further illustrated the discrimination he claimed to have suffered during his employment with GE and/or Procom and described the behaviours for which he hoped to be compensated. [ 14 ] Roumiana Jetcheva acted as assessment advisor for the Commission. She oversaw the file of Nizar Kamouna after he filed his complaint with the Commission for alleged discrimination in the Workplace. [ 15 ] As of April 27, 2018, Mr. Kamouna complained of what he perceived as being partiality and lack of ethics from Ms. Jetcheva. [10] He repeated his reproaches on April 30, 2018. [11] [ 16 ] Mr.

Kamouna sent two letters on May 3, 2018: ➢ One to Francis Lavoie, senior administrative technician at the Commission (and again on June 7, 2018 [12] ) to inform him that he was cancelling the telephone meeting scheduled later on the same day with Michel Moreau from the Commission “[s]ince the right team [was] now dealing with [his] complaint.” [13] ➢ Another one to Soraya Succès and Francis Lavoie, copy to Monique Ménard and Réal Tremblay, to denounce the fact that Ms.

Jetcheva refused to meet him although he was of the view that limiting him to sending 500 pages of documents in support of his complaint was not sufficient and he needed to be heard from the Commission. He also advised them then that he no longer believed that his complaint would be analyzed objectively and that it would be rejected. [14] [ 17 ] On June 6, 2018, Ms. Jetcheva forwarded to Mr. Kamouna the recommendations she intended to send to the Commission. [15] [ 18 ] Before outlining her recommendations, Ms. Jetcheva first summarized in 14 paragraphs the reproaches Mr.

Kamouna had made against his former employer and colleagues, and then set out the information obtained from GE and Procom during the Commission’s investigation. [ 19 ] She did not qualify the evidence gathered, limiting herself to reporting the facts as they were brought to the attention of the Commission by the respective parties. [ 20 ] In her correspondence to Mr. Kamouna, Ms. Jetcheva summarized the information gathered by the Commission, as follows: [Mr. Kamouna’s] allegations 1. You are a permanent Canadian resident of Egyptian origin and Muslim faith. You hold British citizenship. 2.

On September 19, 2016, you joined GE Énergies Renouvelables Canada Inc. (hereinafter, GE or the employer) as Project Management and Contract Specialist III. You were interviewed and hired by Mr. Dmitry Cherepanov, Head of Contracts. The latter who became your line manager, informed you that your employment contract would be administered by their “payroll administrator” Procom Quebec Inc. (Procom.) Therefore, although you had signed a temporary contract with Procom, you do not consider this company as being your employer. 3.

Soon after your arrival at the GE office in Sorel-Tracy, you noticed that you were treated differently than your co-workers who were not of the same origin of faith. You illustrate your allegations with the following examples: • In November 2016, you were moved from your desk two times in one week. When you were asked by the Project Director Michael Cain, to move for a third time, you became convinced you were discriminated against on race and faith grounds. […] 4. On January 15, 2017, you had a meeting with Mr. Cherepanov who confirmed that your services would be required until October 31, 2017.

You consider this conversation as a verbal contract between you and GE. 5. On January 19, 2017, you informed D. Cherepanov about some wrongful acts committed by the Project Director Michael Cain. As soon as you signalled the abuse, you felt that the discriminatory treatment intensified. […] 8. Moreover, you believe the managers instructed your co-workers not to talk to you. 9. On March 16, 2017, you made a complaint to the GE Corporate Ombudsperson about the “systemic campaign of discriminatory harassment”.

However, you did not report the above-mentioned offensive comments, with the exception of “Egyptian fighter” which was mentioned in your complaint (document included in your file). 10. On March 28, 2017, you had a conference call with Ms. Shannon Millar from the GE Human Resources (HR) department to discuss the situation. Instead of reaching a positive resolution, Ms. Millar instructed you to work from home as much as possible. The HR department proceeded with an internal investigation which was, in your opinion, shambolic and not impartial. You assert that this investigation was also

an act of discrimination. 11. On April, 2017, you filed a psychological harassment complaint with the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST) and GE immediately took reprisals against you. On April 7, 2017, you were asked to work from home all

the time and not to go to the office. The reason given to you was that the employer was afraid for your health due to your allegations of harassment. You believe it was actually a way of depriving you from GE resources, tools and equipment while your colleagues who were not from the same faith and race had access to resources they needed . 12. On or about June 6, 2017, D. Cherepanov left the company and Ms. Elena Regal-Zeiger became your line manager. She did not allow you to return to the office and you felt she treated you less favourably than your co-workers . 13.

On June 12, 2017, you made a complaint to the GE Executives against Ms. Regal-Zeiger. On June 16, 2017, the employer retaliated by disconnecting you from the company server and putting an end of your employment. […] 15. During our assessment, while discussing the lack of pertinent information to corroborate your allegations of harassment or discriminatory comments, you explained that “the burden of proof is upon them not upon me” (your e-mail of March 7, 2018). Our verifications with the respondent Procom […] 4.

On March 31, 2017, GE contacted Procom and without specifying the reason, requested that you work at home. The same day, your account manager from Procom, Mr. Rodney Bushey, sent you an e-mail asking you to contact him as soon as possible. Despite his numerous attempts to contact you, you never answered except on April 4, 2017, when you sent a text message reading “I am in dispute with GE not PROCOM”. Mr. Bushey then wrote “Nizar, this is a big concern and I insist you call me.

Please adhere to my request that you pick up the phone and contact me” and you answered “Dear Sirs, this is private number and I have nothing to discuss before hearing from the authorities” (messages included in your file). 5. On April 5, 2017, M. Bushey sent you an e-mail informing you that you would be working from home “in the short-term” and would take direction from Ms. Elena Regal-Zeiger . He reminded that you have to report to Procom every work-related concern. 6. This e-mail remained unanswered and on April 10, 2017, Ms. Josephine Ngo, Manager, sent you another letter asking to communicate with Procom.

In response, on April 13, 2017, you sent a letter explaining that your “real employment agreement” is with GE and not with Procom. 7. On April 18, 2017, Procom sent you a letter of courtesy reminding that your temporary contract would terminate on June 16, 2017, and inviting you to contact their office to discuss your career plans and future opportunities. 8. In conclusion, Procom states that it has never been informed by you or GE, of your allegations of discrimination and harassment. Our verifications with the respondents GE Énergies Renouvelables Canada Inc., Dmitry Cherepanov and Michael Cain 9.

GE confirms the terms of your temporary contract signed with Procom on September 19, 2016 and ending on June 16, 2017. […] 13. The respondent asserts that your own conduct was aggressive, inappropriate and confrontational, and that you created a toxic work environment. Its seems that both Mr. Cherepanov and Mr. Cain experienced great difficulties in managing you. The employer provided numerous e-mails between you and your managers/co-workers as well as a complaint of a co-worker reporting that you “raised your voice again”. […] 15.

As indicated in your complaint, GE confirms that on March 31, 2017, you were asked to work from home. It was due in part to your actions in denigrating and humiliating your managers. Working from home was not contrary to your contract. You were in possession of your laptop provided by the respondent and had access to GE’s servers and information. You were normally paid until the end of you contract on June 16, 2017. […] 17. The respondent informs us that you filed, on the bases of the same facts as those submitted to our Commission, two psychological harassment complaints pursuant to

section 123.6 and following of the Act Respecting Labour Standards , against GE and Procom. After investigating your harassment complaints, the CNESST decided to close both of them. As you requested, on April 24, 2018, your complaints were transferred to the Tribunal administratif du travail (letters included in your file).

As mentioned during our telephone conversation on April 27, 2018, after a careful examination of your complaint, we are advising you of our intention to recommend to the Commission to cease acting in your file, because we consider that the conditions required for us to conduct an investigation have not been met .

Indeed, there is nothing in the situation described to support your allegations to the effect that there is a link between your race/colour, your origin or your religion, and some administrative decisions made by the respondent, such as changing your desk or not inviting you to specific events/workshops. […] If you have any comments, please send them to us before June 20, 2018. Be assured that any new and relevant fact mentioned in your comments will be taken into consideration by the Commission. […] [16]

(Our underlining) [ 21 ] On June 11, 2018, Monique Ménard from the Commission wrote to Mr. Kamouna [17] : We acknowledge receipt of your e-mail requesting a meeting with the Commission des droits de la personne et des droits de la jeunesse. However, the Commission does not provide meetings for the evaluation of the complaints. A document was sent to you on June 6, 2018, giving you the opportunity to respond to your employer’s version, before June 20, 2018. Be assured that upon receipt of your comments or documents, the Commission will analyse them thoroughly.

In order to accommodate you, we can allow you an extended delay of 4 additions weeks to send us your pertinent comments or documents. Therefore, we will give you until July 20, 2018 to do so. (Our underlining) [ 22 ] On June 12, 2018, Mr. Kamouna wrote to the Commission, to complain about the fact that, in his opinion, Ms. Jetcheva should have allowed him to respond to GE’s comments before making any decision. [18] [ 23 ] On June 13, 2018, he wrote to Mr.

Lavoie, to “reconfirm that the Evaluator’s decision confirms [his] allegations of serious impartiality and breach of the code of conduct which [h]e ha[d] sent to [him].” [19] [ 24 ] On June 14, 2018, Mr. Kamouna wrote again to the Commission and Ms. Jetcheva to denounce his recriminations with regards to the work of the latter and the outcome of the investigation of his complaint. [20] [ 25 ] On July 6, 2018, he addressed a letter to the president of the Commission and Monique Ménard [21] in which he voiced criticisms regarding the handling of his case by Ms.

Jetcheva, blaming her for being inconsistent for having given him written permission to update his complaint, having acted in bad faith, with partiality and in conflict of interest. [ 26 ] In his letter, he also referred to Ms.

Jetcheva’s: − Refusal to send him GE’s response to his complaint. − Omission to consider the fact that the CNESST upheld his pecuniary complaint. − Decision that his employer’s version of the event could not justify discrimination and/or that his employer was justified in discriminating against him. − Mention of the fact that he is Egyptian and holds a British citizenship as being offensive and discriminatory. − Rejection of his ten or so requests to meet with her. − And the Commission’s overall refusal to investigate his complaint. [ 27 ] On July 16, 2018, Mr.

Kamouna wrote to the president of the Commission: Further to our conversation last week, I would like to file a

summary of my comments to submit to the commission by 31 July 2018. This aims to briefly highlight why I am certain that the recommendations made by Mrs. Roumiana (sic) is both “Abuse of Authority” and is a conduct in “bad Faith”. It will be in the interest of all the parties to avoid legal proceedings against Commission and the investigator unless there is no resolution. [ 28 ] On August 23, 2018, the Commission adopted a resolution along the lines of Ms. Jetcheva’s recommendations, and decided to cease to act in Mr. Kamouna’s case for the following reasons: Considérant qu’il y a discrimination, au sens de l’

article 10 de la Charte , lorsqu’une distinction, exclusion ou préférence fondée sur un motif prévu à cet

article a pour effet de compromettre le droit d’une personne d’être traitée en pleine égalité dans la reconnaissance et l’exercice de ses droits et libertés Considérant que cela suppose d’être en mesure de démontrer que le traitement ou le geste dont une personne se plaint, qu’il s’agisse d’une distinction, exclusion ou préférence, est relié à un motif de l’

article 10 de la Charte et qu’il a pour effet de détruire ou de compromettre le droit à l’égalité de la victime; […] Considérant que les gestes et comportements reprochés par le plaignant N. K. dont notamment le fait d’avoir été déplacé de bureau ou de ne pas avoir été invité au dîner de Noël des employés de GE ou à des réunions ou ateliers ne relèvent pas de discrimination en l’espèce puisqu’aucun lien selon la preuve ne peut être fait entre ces gestes et les motifs de discrimination invoqués étant des questions relevant du pouvoir de gestion de GE eu égard au statu contractuel de N.

K.; Considérant que les allégations relatives aux propos discriminatoires est vigoureusement contestées par D. C. et M. C. et n’a pu être corroborée d’aucune façon; Considérant que l’ensemble de la preuve recueillie en enquête permet plutôt de soutenir que les récriminations de N. K. envers les gestionnaires et les collègues de GE relèvent du spectre de relations de travail difficiles entre les parties;

Pour ces motifs la Commission estime que la preuve dont elle dispose au terme de l’enquête est insuffisante pour porter la cause devant un tribunal et qu’il est inutile de poursuivre la recherche d’éléments de preuve; […] [ Translation from the undersigned ] Whereas discrimination within the meaning of

section 10 of the Charter exists when a distinction, exclusion or preference based on a ground set out in that

section has the effect of compromising the right of a person to be treated in full equality in the recognition and exercise of his or her rights and freedoms. Whereas this presupposes being able to show that the treatment or act complained of by a person , whether a distinction, exclusion or preference, is related to a ground of

section 10 of the Charter and that it has the effect of destroying or impairing the victim’s right to equality . Whereas the actions and conducts alleged by complainant N. K., including being moved from one office to another or not being invited to the GE employees’ Christmas dinner or to meetings or workshops, do not amount to discrimination in this case, since no link can be made according to the evidence between these actions and the grounds of discrimination invoked being matters of management authority GE in relation to N.K.’s contractual status.

Whereas that the allegations of discriminatory remarks are vigorously contested by D. C. and M. C. and could not be corroborated in any way. Whereas the evidence gathered during the investigation supports rather that N. K.’s complaints against GE managers and colleagues fall within the spectrum of difficult working relationships between the parties.

For these reasons, the Commission considers that the evidence before it at the end of the investigation is insufficient to bring the case before a court and that it is unnecessary to continue the search for evidence. [ 29 ] The extract of the resolution having been signed on May 2, 2019, [22] (nine months after the resolution was adopted) it is only after that date that Mr. Kamouna was made aware of the Commission’s decision. [ 30 ] On September 6, 2019, in response to Mr.

Kamouna’s September 5, 2019, request that the Commission’s decision regarding his complaint be reviewed and that compensation be paid to him, Jean-François Trudel, Secretary of the Commission wrote to inform him that: [23] − Neither the Charter nor the Regulation Concerning the Process of Complaints and the Procedure Applicable to Investigations of the Commission [24] include an appeal or review process of a decision rendered by the Commission. − The Commission does not have the competence to review its decision. − He can file a claim with the Court of Quebec (Civil or Small Claims Division) or the Superior Court to seek compensation in connection with his allegation of discrimination and harassment by his former employer and colleagues. − The Commission’s decision is subject to judicial review by the Superior Court and such an application must be made within a reasonable time after the act or the fact on which it is based, as per

section 529 of the Code of Civil Procedure . [ 31 ] On May 31, 2021, Mr. Kamouna addressed a demand letter to the Commission, its president, Mr. Philippe-André Tessier, and Ms. Jetcheva accusing them of having: 1. Act [ed] in bad faith. 2. Breach [ed] the Code of Ethics and Conduct (CODE DE DÉONTOLOGIE) at the level of personnel and the Commission alike. 3. Breach [ed] the established service standards. 4. Breach [ed] the provisions of the A ct respecting Access to documents held by public bodies and the Protection of personal information (the “ Public Sector Act ”). 5.

Infringe [d] a right conferred by the Public Sector Act and/or sections 35 to 40 of the Civil Code of Quebec . [25] (Capital letter and emphasis in the original) [ 32 ] In the claim against the Commission and Ms. Jetcheva he introduced in the present case, Mr. Kamouna explains that he is seeking: 2. Material prejudice and loss of remedies which would have been recovered from Mrs Elena Regal-Zeiger and my ex-employer GE Renewable Energy Canada (GE) had the Defendants not acted in Bad-Faith, had they investigated my complaint against Mrs. Regal- Zeiger and enforced their jurisdiction in the Charter .

The Defendant abused their power by ignoring the Plaintiff’s complaint against Mrs. Regal-Zeiger altogether in violation of their functions, obligations, and deliberate failure to exercise their jurisdiction despite my repeated complaints. [ 33 ] He blames Ms. Jetcheva for having: − Concluded in her investigation that Renewable Energy was not his employer despite the fact that both Canada Revenue Agency

and Commission des normes de l’équité de la santé et de la sécurité du travail (CNESST) concluded otherwise. − Blamed him for refusing

an act of force labour by his employer as he contends that he had been hired as senior contracts andproject management expert in Montréal and was asked to train staff in Newfoundland. [34] The premise on which Mr. Kamouna bases his claim, namely that Ms. Jetcheva and/or the Commission have decided that he wasnot a victim of discrimination prohibited by the Charter in the context of his employment with GE and/or Procom, is erroneous, as wewill see below. [35] In addition, the Commission, its members, and employees enjoy immunity.

a) The limits of the Commission’s power and the scope of its “decisions” [36] The functions of the Commission are set out in

article 71 of the Charter: 71. The commission shall promote and uphold, by every appropriate measure, the principles enunciated in this Charter. The responsibilities of the commission include, without being limited to, the following: (1) to make a non-adversary investigation, on its own initiative or following receipt of a complaint, into any situation, except thosereferred to in

section 49.1, which appears to the commission to be either a case of discrimination within the meaning of sections 10 to 19,including a case contemplated by

section 86, or a violation of the right of aged or handicapped persons against exploitation enunciated inthe first paragraph of

section 48; (2) to foster a settlement between a person whose rights allegedly have been violated, or the person or organization representing him,and the person to whom the violation is attributed; […] [37] The Commission is not an administrative tribunal. Its acts are administrative in nature.[26] Its only powers are of investigationand recommendation.[27] [38] The Commission does not rule on the rights of a complainant.

As a matter of fact, even after a person has applied to theCommission asking it to investigate a situation of discrimination prohibited by the Charter, expecting it to investigate, and eventuallybring the case before a court of law, that person retains all her rights and may decide to exercise them personally.[28] [39] The legislator has provided for the consequences of this eventuality in

Article 77 of the Charter and established that theCommission ceases to act in favour of a complainant that “has, on the basis of the same facts, personally pursued on the remediesprovided for in

section 49 and 80” of the Charter before a court of law. [40] The Commission’s investigative mechanism is essentially “administrative and inquisitive”. The Commission’s duty to treat fairlythe parties involved in a complaint of discrimination on which it is investigating entails only that it submits to them a statement of therelevant facts revealed by its investigation and invites them to submit their comments.[29] 53 The Commission is not an adjudicative body; that is the role of a tribunal appointed under the Act.

When deciding whether acomplaint should proceed to be inquired into by a tribunal, the Commission fulfills a screening analysis somewhat analogous to that of ajudge at a preliminary inquiry. It is not the job of the Commission to determine if the complaint is made out. Rather its duty is to decideif, under the provisions of the Act, an inquiry is warranted having regard to all the facts. The central component of the Commission’srole, then, is that of assessing the sufficiency of the evidence before it. Justice Sopinka emphasized this point in Syndicat des employésde production du Québec et de L’Acadie v.

Canada (Canadian Human Rights Commission), (SCC), [1989] 2 SCR 879,at p. 899: The other course of action is to dismiss the complaint. In my opinion, it is the intention of s. 36(3)(

b) that this occur where there isinsufficient evidence to warrant appointment of a tribunal under s. 39. It is not intended that this be a determination where the evidenceis weighed as in a judicial proceeding but rather the Commission must determine whether there is a reasonable basis in the evidence for proceeding to the next stage.[30] (Our underlining) [41] The Directive relative aux règles applicables aux enquêtes de la Commission des droits de la personne et des droits de lajeunesse en vertu de la Charte des droits et libertés de la personne[31] confirms: 11.

Au terme de son enquête, la Commission détermine si la preuve lui apparaît suffisante pour saisir un tribunal au bénéfice d’unepersonne dans le cadre d’un comité des plaintes. 12. La décision de la Commission sur la suffisance de preuve est une décision administrative discrétionnaire. 13. Ainsi, la Commission ne se prononce pas sur l’existence ou non de la violation d’un droit relevant de sa compétence d’en quête dansle cadre de sa décision. (Our underlining) [42] When examining a complaint, the Commission does not decide whether it is well founded.

After receiving a complaint, theCommission carries out a preliminary assessment to determine whether the facts set out therein warrant an investigation. At this

preliminary stage, the Commission may refuse to examine a complaint further if the alleged victim has no sufficient interest ( s. 77 (3) of the Charter ) or if the complaint is frivolous, vexatious, or made in bad faith ( s. 77 (4) of the Charter ). [ 43 ] When the Commission takes the complaint to the investigation step, (as it did with Mr. Kamouna’s complaint) it seeks to ascertain whether the evidence it has access to is sufficient to allow the case to be presented before a court of law. [32] [ 44 ] The Commission’s investigation is conducted on a non-adversarial basis ( s. 71 (1) of the Charter ).

It is an administrative step during which the Commission attempts to gather relevant evidence ; [33] evidence likely to support before a court the complainant’s claim that he has been discriminated against within the meaning of the Charter . [ 45 ] The mandate of the Commission is therefore not to take all situations brought to its attention before a court, but rather to assess whether, in its opinion, a complaint of discrimination has any chance of being upheld by a court.

The Commission’s opinion (favourable or not) on the existence of discrimination in each situation is all the less binding on the courts, as it does not assess the probative value of documentary or testimonial evidence received.

Its role is solely to receive each party’s version of the facts. [ 46 ] The Commission controls its procedure, and it has adopted precise rules for handling complaints in that regard. [34] After it has determined whether the evidence obtained during its investigation seems “sufficient” (as opposed to “probative”) for the dispute to be brought to a court of law, it determines whether it will act in favour of the complainant before a court.

It has wide discretion to cease to act in favour of a complainant and rather allow him to lodge alone (with or without legal representation), and at his own expense, a claim before the Human Rights Tribunal. [35] [ 47 ] The Commission does not have authority to and does not rule on a complainant’s rights. [36] It does not make “final” decisions. Its powers are limited to determining whether – in each case – there is a reasonable possibility that if brought to a court of law the complaint could be upheld and give rise to redress. [37] [ 48 ] Contrary to what Mr. Kamouna contends, Ms.

Jetcheva did not conclude that he was not an employee of GE. She did not have to “assess” the value of the Canada Revenue Agency’s (CRA) decision that would have been made on October 22, 2018, and April 5, 2019, that he was an employee of GE between September 19, 2016, and June 16, 2017, as well as between June 19, 2017, and July 15, 2017. [38] [ 49 ] As a matter of fact, the issue of whether Mr. Kamouna was ever an employee of GE is not settled to this day. In the Files 500-22- 247915-187 and 500-22-256450-191, where the CNESST is claiming a total of $16,348.37 from GE for Mr.

Kamouna for wages, statutory holidays, notice and annual leave (as well as a penalty of 20% of the amount), GE implied Procom, claiming that Mr. Kamouna was never its employee. [39] [ 50 ] Mr.

Kamouna is aware of his right to take legal action against the perpetrator of the discrimination he believes he suffered, despite the Commission’s opinion that the evidence seems insufficient to prove it. [ 51 ] He is indeed suing GE and Procom for damages before the Small Claims Division of the Court of Quebec in file number 500-32- 712782-202, claiming (amongst other amounts) $4,450 as compensation for the discrimination he believes he suffered while in their employ, at the hands of his superiors and colleagues.

He has, however, opted not to sue his colleagues Dmitry Cherepanov and Michael Cain personally, whom he had identified in the complaint he filed with the Commission as some of the perpetrators of the discriminatory acts and remarks at the origin of his complaint. [ 52 ] Mr. Kamouna did not explain why he chose to sue the Commission to obtain the compensation he believes he could have obtained from Mrs. Regal-Zeiger rather than suing her directly. After all she would be the author of some the acts of discrimination which he complains. To win his case against the Commission (if recourse was possible), Mr.

Kamouna would first have to lead the tribunal to conclude that his reproaches against Ms. Regal-Zeiger constitute discrimination prohibited by the Charter . [ 53 ] Once this demonstration would have been made, he would have to prove that the Commission failed to investigate his allegations of discrimination against Ms. Regal-Zeiger, that this omission was wrongful, marked by bad faith and impartiality (as he alleges), and, finally, that it deprived him of his recourse against her. [ 54 ] However, because of the inherent limitations of the Commission’s mission, Mr.

Kamouna could have instituted proceedings against Ms. Regal-Zeiger. The fact that he did not do so does not vie him a right of action against the Commission.

b) Immunity of the Commission, its members, and its employees [ 55 ] In addition to the limits of the Commission’s investigative powers,

article 68 of the Charter provides that the Commission and its employees benefit from immunity from civil liability. The provision reads as follows: 68 In no case may the commission, any member or mandatary of the commission or any member of its personnel be prosecuted for any omission or any act done in good faith in the performance of his or its duties.

Moreover, they are, for the purposes of an investigation, vested with the powers and immunity of commissioners appointed under the Act respecting public inquiry commissions (chapter C-37 ), except the power to order imprisonment. [ 56 ] The Commission, its members and employees enjoy quasi-absolute immunity. With regards to its investigative powers, the Commission is vested with the powers and immunity provided under

section 16 of an Act Respecting Public Inquiry Commissions . [40] Under that provision “Commissioners shall enjoy the same immunity and privileges as judges of the Superior Court for any act done or omitted in the performance of their duties.” [ 57 ] The Supreme Court has interpreted this provision as granting commissioners absolute immunity for acts done or omitted in the performance of duties, which must be applied at the stage of an application for inadmissibility. [41]

[ 58 ] Anyone wishing to invoke the exception to the absolute immunity enjoyed by the Commission must do so by means of precise allegations enabling this right. The reasons for the exception must appear in the text of the procedure. [42] [82] Pour cadrer dans les limites restreintes de l’exception, il faut plutôt être en face d’une absence de compétence notoire, voire flagrante, qui ne porte pas du tout à équivoque.

Somme toute, d’une situation où le décideur, qu’il soit commissaire ou juge, n’a même pas à se poser de question ou à exercer de jugement pour réaliser qu’il excède sa compétence . [43] [ 59 ] Based on this principle, for the Court to be able to order the Commission and/or Ms. Jetcheva to pay damages to Mr.

Kamouna, it would have to establish that either of them had committed a fault and understood they were acting outside their powers. [ 60 ] The Superior Court has established that: […] la violation d’une règle de justice naturelle et de la violation de l’équité procédurale découle de l’exercice des pouvoirs accordés à la Commission tant par la Charte que par la

Loi sur les commissions d’enquête . Ces violations ne permettent pas de faire bénéficier le demandeur de l’exception à l’immunité absolue accordée à la Commission selon les critères de l’arrêt Morier .

D’ailleurs, dans cette affaire les reproches faits au commissaire comprenaient : des violations alléguées à une règle de justice naturelle (donc aux notions d’équité procédurales); des agissements discriminatoires; des violations de la Charte québécoise ; la perpétration d’une fraude à la loi faite sciemment; un manquement au devoir d’agir équitablement (donc encore une fois relié aux notions d’équité procédurale); un traitement injuste, abusif, discriminatoire et inéquitable du demandeur. [44] [ 61 ] There are limited exceptions that can be invoked to override the protection afforded by the Charter .

To the extent that Commissioners take action to investigate or report, it does not matter whether they have exceeded their jurisdiction, violated the rules of natural justice, or even violated the Charter . In such cases, they cannot be the subject of an action for damages. [45] [ 62 ] Mr. Kamouna’s allegations against the Commission and Ms. Jetcheva that they acted in bad faith or in a discriminatory manner, with partiality and in conflict of interest are not supported by any specific facts. The Court is not bound by Mr. Kamouna’s impressions or

interpretations of the underlying motives of the Commission and/or Ms. Jetcheva’s reading of the evidence collected. Considering the Commission’s and its employee’s quasi-absolute immunity, it is not sufficient for him to make general allegations without detailing the conduct which could enable the Court to uphold his contention. [46] [ 63 ] Since Mr. Kamouna’s application contains no factual allegation that the Commission acted outside its jurisdiction, his action against the Commission is not founded in law. 2.

What recourse does a person who is dissatisfied with the outcome of the Commission’s investigation of his complaint have? [ 64 ] The recourse available to a person dissatisfied with the outcome of the Commission’s investigation is judicial review, not a claim for damages. [ 65 ] Mr. Kamouna’s complaint against the Commission and Ms. Jetcheva stems from his disagreement with their conclusions that the evidence which would tend to show the existence of discrimination against him on the part of his former employer and colleagues is not sufficient or conclusive.

He believes that the Commission failed to adequately analyze the evidence gathered and investigate his complaint against Ms. Regal Zeiger, and that it was biased in favour of the employer. [ 66 ] Like all political bodies or legal persons established in the public interest in Quebec, the Commission is subject to the supervisory and reform power of the Superior Court, pursuant to

section 34 and 529 CCP, which read as follows: [47] 34 . The Superior Court is vested with a general power of judicial review over all courts in Québec other than the Court of Appeal, over public bodies, over legal persons established in the public interest or for a private interest, and over partnerships and associations and other groups not endowed with juridical personality. This power cannot be exercised in cases excluded by law or declared by law to be under the exclusive purview of those courts, persons, bodies or groups, except where there is lack or excess of jurisdiction.

A matter is brought before the Court by means of an application for judicial review. 529.

In a judicial review, the Superior Court may, depending on the subject matter, […] (2) evoke, on a party’s application, a case pending before a court, or review or quash a judgment rendered by a court or a decision made by a person or body under the authority of the Parliament of Québec, if the court, body or person acted without jurisdiction or in excess of jurisdiction, or if the procedure followed was affected by some serious irregularity; (3) direct a person holding an office within a public body, a legal person, a partnership or an association or another group not endowed with juridical personality to perform

an act which they are by law required to perform, provided the act is not of a purely private nature; or […] Except in the case of lack or excess of jurisdiction, judicial review is available only if the judgment or the decision cannot be appealed or contested.

An application for judicial review must be served within a reasonable time after the act or the fact on which it is based. [ 67 ] The Quebec Court – whether the Civil division or the Small Claim division – does not have jurisdiction to review a Commission ’s determination that it does not have sufficient elements to justify filing a claim with the Human Rights Tribunal, or its failure to inquire on a given complaint. [ 68 ] As for the Superior Court, when it is seized with an application for judicial review, it does not sit in appeal of the Commission’s decision to cease acting in favour of a complainant.

It does not have to substitute its own opinion for that of the Complaints Committee, which concluded that the evidence was insufficient to file legal proceedings . [48] WHEREFORE, THE COURT: [ 69 ] GRANTS the Defendant’s request for dismissal of Nizar Kamouna’s Claim; [ 70 ] DIMISSES Nizar Kamouna’s claim against the Commission des droits de la personne et des droits de la jeunesse and Roumiana Jetcheva. [ 71 ] THE WHOLE, with costs. __________________________________ MAGALI LEWIS, J.C.Q. Date of hearing: September 6, 2022, December 19, 2022, and June 26, 2023.