2023 QCCQ 5535, 2023 QCCQ 5535

Kamouna c. GE Énergies renouvelables Canada inc. 2023 QCCQ 5535 COURT OF QUEBEC « Small Claims Division » CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL "Civil Division" N° : 500-32-712782-202 500-32-712256-207 500-32-712257-205 DATE : August 25, 2023 ______________________________________________________________________ BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. ______________________________________________________________________ NIZAR KAMOUNA Plaintiff vs. GE ÉNERGIES RENOUVELABLES CANADA INC. and PROCOM QUÉBEC INC.

Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ THE OUTLINE [ 1 ] The Plaintiff Nizar Kamouna ( Kamouna ) instituted three separate recourses in the Small Claims Division.

All three recourses were joined and proceeded on the same evidence. [ 2 ] In Court files no. 500-32-712256-207 ( 207 ) Kamouna claims from GE Énergies renouvelables Canada Inc. ( GE ) and Procom Québec Inc. ( Procom ) $15,000 for the lost income, revenue and economic opportunities, for the time and efforts he invested to obtain the correction of a record of employment, plus the damages for the inconvenience and financial hardship, as well as punitive damages. [ 3 ] In Court files no. 500-32-712782-202 ( 202 ) Kamouna claims $15,000, representing the value of personal items stolen or misplaced by GE, the capital allowance cost for the use of his personal equipment in his work, damages for the use of his home as an office, plus damages equivalent to a termination notice. [ 4 ] In Court file no. 500-32-712257-205 ( 205 ) Kamouna claims $15,000 in damages, following the disclosure by GE of personal and confidential informations to GE employees and for the destruction of relevant documents he wished to retrieve. [ 5 ] Both GE and Procom contest these claims and raise several arguments, namely that Kamouna has undertaken other recourses against them for the same claims, namely before the Court of Quebec, Civil Division, the Tribunal administratif du travail (the TAT ), before the Commission des droits de la personne et des droits de la jeunesse (the CDPDJ ) and the Commission d’accès à l’information (the CAI ).

THE CONTEXT LEADING TO THE THREE CLAIMS [ 6 ] Nalcor Energy, Newfoundland and Labordor‘s energy company, retained the services of GE, for its Soldiers Pond site, where the conversion of electricity is underway. [ 7 ] To fulfill its employee requirements, GE engaged Procom, a placement agency. [ 8 ] On June 16, 2016, a fixed-term employment contract [1] (the Contract ) was concluded between Kamouna and Procom, for the position of Contracts and Management Specialist, grade III, for the period of September 19, 2016, to June 16, 2017. [ 9 ] Kamouna started in this position as of September 2016, located in the Sorel-Tracy office, until January 2017, when he was

relocated at the Brossard office [2] . [ 10 ] At the end of March 2017, Ms.

Shannon Millar, HR Manager with GE requested that Kamouna work from home, initially for a period of two weeks, after which he was asked not to return to the office. [ 11 ] Kamouna complains of having been prevented from returning to his office to retrieve his personal belongings left in his locker that were either stolen or misplaced, the value of which is now the object of his claim in Court record 202. [ 12 ] In the same Court record, having been relocated to his home, Kamouna claims a capital cost allowance and other expenses relating to the use of his home and personal equipment. [ 13 ] Procom and GE have taken the position that the Contract terminated as scheduled on June 16, 2017, which is contested by Kamouna, who continued to work and enter his hours, until July 9, 2017. [ 14 ] Thus, he argues that, having continued to work for a period exceeding five days, his Contract was renewed, in accordance with

Article 2099 of the Civil Code of Québec , justifying his claim equivalent to a termination notice, in Court record 202. [ 15 ] Moreover, the Record of Employment (the ROE ) issued by Procom covered the period until June 16, 2017, only. Kamouna had to take steps to have it corrected, which forms the basis of his claim in Court record 207. [ 16 ] Finally, Kamouna argues that he was treated in a high-handed manner and discriminated against, and that personal and confidential information was disclosed to all GE employees, causing him humiliation, embarrassment and stress.

These claims form the basis of Court record 205.

KAMOUNA’S EMPLOYER [ 17 ] Although the Contract provides that Procom is the employer and GE is the client, Kamouna argues that GE was the de facto employer. [ 18 ] Kamouna submitted several decisions [3] where the Courts have determined the relevant criteria to consider in identifying who the real employer was in a tripartite relationship. [ 19 ] Kamouna also relies on a letter dated October 22, 2018 [4] , from Canada Revenue Agency ( CRA ), to whom he applied to have the ROE corrected, in order that the hours computed during the period of June 19, to July 15, 2017, be added as insurable hours, in which it concludes that GE was his employer. [ 20 ] A similar letter was sent to GE [5] , from CRA concluding that GE was the employer, for the extended period of June and July 2017.

GE did not appeal this decision. [ 21 ] Moreover, in the course of the claim filed against GE and Procom with the TAT [6] damages relating to Kamouna’s employment, GE filed an admission, but limited for the purpose of these claims only, that it was Kamouna’s employer, and an admission confirmed in a letter, dated February 14, 2022 [7] , from Marie-Claude Grignon, Administrative Judge at the TAT. [ 22 ] In the present matter, except for this evidence from CRA and the TAT, decisions not binding on this Court, no evidence was presented to convince the Court that GE had become Kamouna’s temporary employer. [ 23 ] Regardless, for the purposes of the present claims, for the reasons hereinafter stated, it is not necessary for the Court to rule on this issue, as most of the damages claimed by Kamouna are extra contractual damages.

COURT RECORD NO. 207 [ 24 ] Kamouna claims $13,000 representing the loss of income and opportunities because of the time he spent to have the ROE issued by Procom corrected. He also claims $1,000 for the inconvenience suffered and $1,000 for punitive damages. [ 25 ] Kamouna explains that during the period he was employed, he entered the hours worked using Procom’s SAP Fieldglass software [8] . [ 26 ] For the period of September 19, 2016, to October 23, 2016, in the

section Posting information , the supervisor identified is Mr. Dmitry Cherepanov, with an indication of the site of employ, the business unit and the order type. [ 27 ] In the

section Comments , the time sheets entries for this period were posted by Piper Mack, on December 13, 2016, with the comment system approved to fix up issues . [ 28 ] For the period of October 24, 2016, to June 4, 2017, Mr. Cherepanov puts in the posting information. No indication of the date of entry appears. [ 29 ] For the following period of June 19 to July 9, 2017 [9] , Mr.

Cherepanov is replaced by Elena Regal Zeiger and the entries were posted by Eduarda Moniz, on July 25, 2017 [10] . [ 30 ] The Court concludes from the evidence provided that Kamouna knew when he was entering hours in the system after June 16, 2017, that the Contract had been terminated and would not be renewed. [ 31 ] On April 18, 2017, Procom wrote a letter [11] to Kamouna informing him that the Employment Contract was expiring on June 16, 2017, inviting him to contact Procom to discuss career plans and future opportunities.

[ 32 ] On June 16, 2017, Josephine Ngo, Manager at Procom writes to Kamouna confirming that his employ will end as scheduled in the employment agreement as of June 16, 2017 [12] . Kamouna states he never received this letter, as it was sent to the Brossard’s office when he was working from home.

However, he did receive on April 18, 2017, letter from Procom, which had been sent to his home, to which he refers in an email dated May 15, 2017 [13] . [ 33 ] Articles 9.4 and 2.5 of the Contract, specifically provide that a written confirmation by Procom is required to extend the contract. [ 34 ] The Court rejects Kamouna’s argument that a tacit contract resulted from the fact that he continued to work for five days following the end of the fixed term Contract. [ 35 ] As soon as Procom realized that Kamouna was continuing to make time entries, his access was blocked, and Procom immediately contacted GE. [ 36 ] Elisabeth Fabre, GE’s representative, states that no work was performed after June 16, 2017, as it was a temporary mission not requiring that the Contract be prolonged. [ 37 ] At the hearing, Kamouna admitted that the hours he entered until July 09, 2017, were submitted, but not approved. [ 38 ] On January 31, 2019, an amended ROE was issued by which CRA added 160 insurable hours for this same period of June 16 to July 9, 2017 [14] .

Prior to this amendment, Service Canada paid to Kamouna unemployment premiums based on the initial ROE submitted.

Once the ROE was corrected, Kamouna was eligible for a further 12 weeks of unemployment benefits. [ 39 ] In June 2018, the Commission des normes, de l’équité, de la santé et de la sécurité du travail (the CNESST ) , instituted two recourses against Procom and GE on behalf of Kamouna [15] , in one claiming $522,43 for costs related to his employ and in the other $15, 825.94, for unpaid wages, vacation pay, costs, and $2,800 in lieu of a notice of termination. [ 40 ] For this reason, Kamouna does not claim in this recourse, unpaid salary and the Court does not have to rule on these issues. [ 41 ] Kamouna’s claim consists of the 200 hours, at $70 per hour, namely the same hourly rate paid under the Contract with Procom, he devoted to have the ROE corrected with CRA and with Service Canada and Social Security. [ 42 ] It is settled law, that the time spent to institute proceedings, to file a claim or to obtain justice cannot be qualified as damages.

This was decided by the Supreme Court in the matter of Hinse v. Canada (Attorney General ) [16] . [ 43 ] Hinse was unjustly sentenced to 15 years’ imprisonment. After serving five years, he was granted parole. Three years after his incarceration he started several procedures, beginning with an Application for mercy, at the Court of Appeal ordering a stay of proceedings and finally the Supreme Court acquitting Hinse in 1997. [ 44 ] A Settlement was concluded between Hinse, the Attorney General of Québec and the town of Mont-Laurier.

Subsequently, Hinse sued the Attorney General of Canada. [ 45 ] The SCC confirms that in Québec law, only an injury which is an immediate and direct consequence of a wrongful act gives rise to an entitlement to damages,

Article 1607 C.C.Q. [ 46 ] As for his claim to recover the investigation costs, the cost for the photocopies, transcripts, travel, postage, etc. and the time wasted and efforts put in, the Supreme Court concurs with the Court of Appeal, that the wasted time, the inconveniences and the efforts expended to obtain justice, are inherent for anyone involved in legal proceedings. Unless there has been an abuse of process, these are not heads of damage under which Mr. Hinse can receive compensation.

They fall under non-pecuniary damage and there is no evidence of lost income [17] . [ 47 ] The same reasoning applies here. Kamouna spent time and efforts to have the ROE corrected and to institute many proceedings in different venues. These efforts cannot be qualified as damages. [ 48 ] As for Kamouna’s argument that

Article 342 of the Civil Code of Procedure allows him to recover damages, representing this time and efforts claimed, on the basis there was an abuse of proceedings by Procom and GE, this argument is unfounded, namely because it is Kamouna who instituted all these recourses and not the contrary. [ 49 ] Moreover, no evidence was provided showing that Kamouna was prevented from working following the end of the Contract. [ 50 ] He states that the only position he was able to obtain was as Project Manager – 2, scale 11, for Tebodin Middle East Ltd, as of January 18, 2019 [18] .

He provided no evidence that he made any effort to secure an employ at an earlier date. [ 51 ] On the contrary, at the hearing Kamouna admitted that he waited until his employment insurance benefits expired to start working, and initially he worked for himself. [ 52 ] For these reasons, the Court dismisses the recourse in Court record 207. COURT RECORD NO. 202: [ 53 ] The Court also concludes that Kamouna cannot succeed in this claim. [ 54 ] As stated earlier, the HR Department of GE requested that as of March 31, 2017, Kamouna continued his work from home.

This situation lasted until the end of the term of the Employment Contract.

[ 55 ] Kamouna states that he had to immediately leave the premises and he was not given the opportunity to recover his personal belongings stored in his locker, including the following: - Personal Comptaq Presario laptops and carry case; - Samsung Galaxy Tab A8 and neoprene sleeve, with a USB charger; - Installed software, professional eBooks and references; - USB charger for iPhone; - Notepads filled with meeting notes and a diary of events. [ 56 ] Surprisingly, it is only on August 3, 2017, [19] that Kamouna contacted GE to provide a list of items that were left in his locker, followed by an updated list on August 16, 2017 [20] . [ 57 ] GE states that it then conducted a full search, but no such items were found and it informed him on August 29, 2017 [21] . [ 58 ] These items may have been purchased by Kamouna at an earlier time [22] .

However no evidence was provided that they were brought at the office. [ 59 ] No witness testified having seen these items on the premises or seen Kamouna use them. [ 60 ] In fact, GE doubts these items were ever brought on the premises, as its policy forbids any employee from bringing personal electronic equipment on the premises or use such equipment in the scope of their work, for security reasons. [ 61 ] All equipment used in the course of his work was supplied by GE.

The exchange of letters between Kamouna and GE’s attorney concerning the retrieval of GE’s equipment used by Kamouna to continue his work until the expiry of the Contract, confirms this. [ 62 ] The claims of $3,750 for the use of his equipment at home as capital allowance, $1,000 for the use of his home as a personal workplace for four weeks at $250 per week, are also unfounded. [ 63 ] They cannot be qualified as an expense incurred by Kamouna. In accordance with Annex B of the Contract, any expense claimed by the employee must be approved in writing by Procom.

Neither Procom nor GE approved such an expense. [ 64 ] As for his claim of $2,800 in lieu of a termination notice , this is based on Kamouna’s argument that an explicit/implicit work agreement was created. [ 65 ] The Court has concluded that the Contract expired at the scheduled date and was not renewed or extended. This claim is unfounded. [ 66 ] Kamouna also claims moral damages of $4,450, for having been vilified, denigrated, belittled, and treated differently than his other colleagues by GE. [ 67 ] No evidence of such conducts was provided by Kamouna.

On the contrary, the evidence shows that Kamouna was a disruptive employee and created a toxic atmosphere.

This conclusion was arrived at by the CDPDJ following Kamouna’s complaint filed on July 7, 2017. [ 68 ] It was this behaviour that prompted GE’s decision to request he no longer works from the office but from home until the end of the Contract. [ 69 ] In his complaint Kamouna essentially raised the same rebukes as in this matter, namely, discrimination and harassment based on race/colour, ethnic or national origin, and religion, against Procom and GE. [ 70 ] In a letter dated June 6, 2018, [23] from Roumiana Jetcheva, Evaluation Adviser, lists many complaints raised by Kamouna. [ 71 ] Following her extensive investigation with Kamouna’s many colleagues and the review of emails and letters, Ms.

Jetcheva concludes that Kamouna’s conduct was aggressive, confrontational, and inappropriate and created a toxic work environment. [ 72 ] For example, during a meeting with other employees present, Kamouna accused Michael Cain, Project Director, of stealing money. [ 73 ] Messer’s Cain and Cherepanov complained that meetings were stopped because of his disruptive conduct. [ 74 ] Ms. Jetcheva concluded that no evidence was presented to support Kamouna’s allegations. In conclusion, she recommends that the CDPDJ cease acting in the file. [ 75 ] The same conclusion must be arrived here.

COURT RECORD 205: [ 76 ] Kamouna claims the following damages: - $12,000 moral damages, the amount he leaves at my discretion;

- $2,000 punitive damages; - $1,000 stress and inconvenience. [ 77 ] In 2015 GE acquired Alstom Renewable Power Canada Inc.’s group of companies who, according to Kamouna, were involved in several corruption scandals in the USA, Europe and the Middle East and they were convicted in the UK and in the EU for bribes to foreign governmental officials. [ 78 ] Kamouna states these same people were his supervisors. [ 79 ] The problems started when Mr.

Cherepanov asked Kamouna to sign on for a payment of $15 million to a supplier of GE, which he refused to do. [ 80 ] Following this, in early 2017, GE asked Kamouna to offset a $47 million loss by making fraudulent claims against the government public funds, with the purpose of concealing bad management decisions. [ 81 ] This prompted Kamouna to file several complaints with UPAC, the Police, Revenu Québec, Revenu Canada and to a number of GE’s clients. [ 82 ] The complaints were all filed, according to Kamouna, as a whistleblower.

The first complaint was filed on January 17, 2017, followed by a second complaint on February 3, 2017, and a last complaint on March 5, 2017.

In mid-March 2017, Kamouna also contacted the Board of Directors in France, for these same allegations. [ 83 ] Kamouna states that following these complaints, personal and confidential informations was disclosed to GE employees, alluding that he suffered from mental illness. [ 84 ] No evidence of this was provided by Kamouna. [ 85 ] Kamouna filed an internal complaint with GE’s Ombudsperson, under the Fair Employment Practices Policy. [ 86 ] Following an internal investigation conducted by Sannon Millar, investigator with the HR Department for Ghalia Souidi, Ombudsperson, during the period of March 27 to April 10, 2017, a report was issued [24] in which Ms.

Millar concluded the following: - That no evidence was provided that the contract with Kamouna was prolonged or renewed; - No evidence that Kamouna was threatened with being fired. However, the investigation concluded that the relationship between Kamouna and his direct superior Mr. Cherepanov was irreparably frustrated and productive work direction ceased. Although Mr. Cherepanov wished that the employment contract with Kamouna be prematurely terminated, this was declined by personnel; - There was evidence of Kamouna’s concern for being excluded within the work environment.

Namely, he complained of not having been invited to a Christmas lunch. This was true, but only permanent GE employees attended. He was also excluded from participating in a February 23, 2017, call meeting where all the Soldier Pond team attended, except him. However, it was discovered that this meeting was held to discuss the concerns raised by Kamouna. - No evidence was found that discrimination occurred against Kamouna based on race, faith, ethnicity or culture. [ 87 ] Kamouna argues that this report was altered. However, no evidence was presented to substantiate this claim. [ 88 ] Ms.

Fabre states that Shannon Millar is an investigator for other GE entities not involved in Kamouna’s team. The report is strictly confidential, to avoid any reprisal against other employees and was reviewed and accepted by GE’s internal lawyers. [ 89 ] This document was not given to any other employee or even to Kamouna who obtained a copy following his petition to the CAI. [ 90 ] It is true that certain documents were destroyed by GE, namely emails. However, Ms. Fabre indicated that GE’s policy is that all email boxes are deleted as soon as an employee leaves the company’s employ.

No evidence was provided that Kamouna suffered damages because of this. Kamouna’s claim in Court record 207 is dismissed.

FOR THESE REASONS, THE COURT: DISMISSES Plaintiff’s Claim; WITH COSTS in the amount of 313$ representing the judicial stamp of the Contestation for GE Énergies Renouvelables Canada Inc. in the file number 500-32-712256-207 ; WITH COSTS in the amount of 313$ representing the judicial stamp of the Contestation for Procom Québec Inc.in the file number 500- 32-712256-207 ; WITH COSTS in the amount of 313$ representing the judicial stamp of the Contestation for GE Énergies Renouvelables Canada Inc. in the file number 500-32-712782-202 ;

WITH COSTS in the amount of 313$ representing the judicial stamp of the Contestation for Procom Québec Inc.in the file number 500- 32-712782-202 ; WITH COSTS in the amount of 313$ representing the judicial stamp of the Contestation for GE Énergies Renouvelables Canada Inc. in the file number 500-32-712257-205 ; WITH COSTS in the amount of 313$ representing the judicial stamp of the Contestation for Procom Québec Inc. in the file number 500-32-712257-205 . ________________________ DIANE QUENNEVILLE, J.C.Q.