Gélinas v. Canada (Financial Transactions and Reports Analysis Centre), 2004 FC 1755

                                                                                                                                  Date: 20041217

                                                                                                                             Docket: T-1190-03

Citation: 2004 FC 1755

Ottawa, Ontario, December 17, 2004

Present:           Madam Justice Danièle Tremblay-Lamer

BETWEEN:

MR. MARC GÉLINAS

Plaintiff

and

FINANCIAL TRANSACTIONS AND REPORTS

ANALYSIS CENTRE OF CANADA

Defendant

REASONS FOR ORDER AND ORDER

[1]         The defendant Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) is a body established pursuant to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17, s. 41 (the Act). Its major objectives are to collect, analyse, assess and disclose information in order to assist in the detection, prevention and deterrence of money laundering and of the financing of terrorist activities, and to enhance public awareness and understanding of matters related to money laundering.

[2]         The plaintiff is an individual who was employed by FINTRAC between October 9, 2001 and March 26, 2003. At the time his employment was terminated, he held the position of Eastern Regional Director, and his responsibilities included the management of the Montréal office of FINTRAC and the supervision of the four employees located there.

[3]         The following facts are not disputed:

[4]         On October 9, 2001, the plaintiff agreed to join FINTRAC to act therein as a senior liaison officer (an FT-5 position) in the defendant's Montréal business office after being offered a one-year leave without pay by the Department of National Defence.

[5]         On March 1, 2002, the plaintiff became "Interim Manager" (FT-6 position) of the Montréal regional office for an initial period of three months, which was renewed twice. He occupied this position until March 26, 2003.

[6]         During the month of January 2003, the plaintiff informed Ms. Shirley Cuddihy, the assistant director in human resources of FINTRAC, that he was involved in divorce proceedings. At the same time he also informed his immediate superior, Mr. Denis Meunier.

[7]         On February 17, 2003, the plaintiff met with Ms. Cuddihy to inform her that he was having an intimate relationship with one of the four subordinates who was under his direction in the Montréal office.

[8]         On or about February 21, 2003, the plaintiff met with his immediate superior Mr. Meunier and informed him of this as well.

[9]         On March 12, 2003, Mr. Meunier and Ms. Cuddihy met with the plaintiff to announce that he was dismissed as manager of the Quebec regional office.

[10]       During this meeting, he was offered a demotion (FT-5) with reduction in salary and a move to Ottawa.

[11]       On March 19, 2003, the plaintiff refused in writing the offer of employment in Ottawa.

[12]       On March 19, 2003, the plaintiff sent a medical note to Ms. Cuddihy recommending a stress-related disruption of employment. He asked FINTRAC, accordingly, to consider him as being on sick leave.

[13]       On March 25, 2003, the defendant, through the Deputy Director - External Relationships, Ms. Sandra Wing, confirmed his dismissal.

[14]       On March 26, 2003, the plaintiff notified Ms. Wing of his refusal to consider the March 26 date as the date of his dismissal, in view of his sick leave.

[15]       On April 24, 2003, the defendant was given a formal notice of requirement to reinstate the plaintiff in his duties with full compensation, as evidenced by the formal notice.

[16]       On May 1, 2003, the defendant refused to comply with the formal notice; hence this litigation.

THE EVIDENCE

Plaintiff's evidence

Testimony of Mr. Marc Gélinas

[17]       Mr. Gélinas testified that he was consistently transparent, since he warned his employer from the moment a romantic relationship with Ms. Rocheville developed. He situates the beginning of this relationship toward the end of December 2002.

[18]       He explains the circumstances of his refusal to accept employment at Ottawa. Since he was involved in divorce proceedings at that time, it was inconceivable that he would leave his children to move to Ottawa. Furthermore, in view of his romantic involvement with Ms. Rocheville and their plan to live together, he thought the exile they wanted to impose on him was unacceptable.

[19]       The stress experienced during this period caused him some serious health problems (insomnia, migraines), hence the medical note recommending a disruption of employment because of illness.

[20]       However, in May 2003 he began looking for work. He approached about 130 potential employers before finally accepting a job with Sportcom. His salary of $60,000 was more than $30,000 less than in his previous employment.

[21]       On cross-examination, he agreed that the FINTRAC employees normally worked from 9:00 a.m. to 5:00 p.m., with the exception of Ms. Rocheville and himself, who often had to work on weekends to prepare presentations or replies to questions from reporting entities.

[22]       The log of telephone calls from September to January indicates many calls to Ms. Rocheville, often in the evening and on weekends. The frequency far exceeds that of the calls to other Montréal employees. Mr. Gélinas states that the calls to Ms. Rocheville were work-related, although he admits that occasionally he discussed other questions.

[23]       An email sent to his son and forwarded to Ms. Rocheville on January 22, 2003 suggests that the romantic relationship had begun prior to December since Mr. Gélinas says he consulted a psychologist in November to try to sort the matter out. Also, he wrote to his son that he was passionately in love with another woman. In this email he admits lying to his wife and being unfaithful to her. Mr. Gélinas states that he was not referring to the romantic involvement with Ms. Rocheville but to the turbulent marriage he was having. He admitted on cross-examination that he knew he was in love toward late December.

[24]       Concerning the glowing recommendation of a reclassification of Ms. Rocheville's position in November 2003, he says that this action was based solely on Ms. Rocheville's qualifications. He did not need to disclose his intimate relationship to his employer since it had not yet begun.

[25]       In his meeting with Mr. Meunier on February 21, during which he informed him of his romantic relationship, Mr. Meunier had said this frequently happened and that there were solutions. He would have to discuss with his colleagues.

[26]       On cross-examination, Mr. Gélinas acknowledged that the employer must be informed at the earliest opportunity when certain situations could result in conflicts of interest or create a real or apparent perception of favouritism or partiality.

Defendant's evidence

Ms. Shirley Cuddihy, Assistant Director of Human Resources with FINTRAC

[27]       Mrs. Cuddihy testified that she communicated with Mr. Gélinas on many occasions where he did seek out her advice as a human resources advisor. She was impressed with his professional ability as an employee.

[28]       She remembers that Mr. Gélinas participated at a meeting in January 2003 where a draft code of conflicts of interest for FINTRAC was discussed. In this document, an illustration of conflict of interest is when a supervisor is in a relationship with an employee. The Public Service Policy for Conflict of Interest was in force during 2002 and 2003 and was superceded by the Code of Conduct in September 2003. Although it does not mention relationships between employees, it does mention the avoidance of preferential treatment.

[29]       Mr. Gélinas advised her in early January 2003 of his marital breakup over the course of the Christmas period. In February 2003 he requested a private meeting that took place on February 17th to discuss a private matter. At the meeting, he revealed his relationship with Mrs. Rocheville, and offered some solutions. She immediately communicated her concerns to Mr. Gélinas. It was not the fact of the relationship that concerned her but the resulting conflict of interest and the lack of judgment that was exhibited on the part of Mr. Gélinas. She suggested to him that he meet with Mr. Meunier, which he did on February 21, 2003.

[30]       She describes Mr. Gélinas as a very thoughtful person. Although he did not mention a date for the beginning of the relationship, the fact that he mentioned that he was falling in love led her to believe that a committed relationship had existed for some time.

[31]       She was concerned that there was a conflict of interest situation because of the managerial position of Mr. Gélinas and the potential for the abuse of authority.

[32]       She was also concerned that Mrs. Rocheville benefited from a preferential treatment or would have given the perception of a preferential treatment because Mr. Gélinas recommended her for a reclassified position - FINTRAC relied on Mr. Gélinas' recommendation.

[33]       Between February 24 and March 11, 2003, Mr. Meunier and her met other management personnel to discuss the situation.

[34]       After these meetings, FINTRAC decided that because Mr. Gélinas had not come forward earlier to disclose the relationship, he had shown a lack of judgment as a manager and that his behaviour created an irreparable breach of trust. Consequently, the consensus was that he could no longer continue as a manager. However, because he was a good employee, an offer of employment in a non-managerial position would be made.

[35]       In cross-examination, she reiterated that the termination of employment was not due to the relationship but because as a manager he did not declare the relationship in a timely fashion. Although it was not impermissible for a supervisor to have a relationship with an employee, when a possible conflict of interest was identified, it is important for the employer to be aware of the situation in order to take rapidly the appropriate measures.

[36]       In her view, the arrangement proposed was reasonable. The alternative position offered was the highest position at a non-managerial level (FT-5) and the only vacant position was in Ottawa. The salary offered was the one that Mr. Gélinas had before he was appointed at a managerial position. She added that the direction was flexible and ready to negotiate on that point.

Testimony of Mr. D. Meunier, Director of FINTRAC

[37]       Mr. Meunier was Mr. Gélinas' immediate supervisor at the relevant time. He testifies that he always had a good relationship with Mr. Gélinas, who informed him of his divorce around the end of January 2002. He told about the meeting on February 21, 2003 with Mr. Gélinas at Ottawa, during which Mr. Gélinas announced to him that he had a romantic relationship with Ms. Rocheville. Mr. Gélinas proposed a number of solutions to resolve the problem of conflict of interest owing to this relationship. Mr. Meunier told him he would have to consult Ms. Cuddihy. As Ms. Cuddihy had indicated, he had the impression that the relationship between Mr. Gélinas and Ms. Rocheville had not just developed but dated back some time.

[38]       A number of meetings were subsequently held with various parties in order to discuss the impact of this situation on the operation.

[39]       A meeting was held on March 10 with the FINTRAC director, Mr. Horst Inster. Mr. Gélinas' lack of judgment was discussed at this meeting. FINTRAC expected that as a manager he would conduct himself in accordance with the agency's values, that is, with transparency, loyalty and integrity.

[40]       On March 11, 2004, a decision was made to dismiss Mr. Gélinas as a manager. At the same time, recognizing that Mr Gélinas was a good employee, FINTRAC offered him an alternative position in Ottawa.

[41]       On March 12, Mr. Meunier and Ms. Cuddihy met with Mr. Gélinas to announce the news of his dismissal and the offer of employment in Ottawa.

[42]       Mr. Gélinas considered the penalty excessive. He could not accept the move to Ottawa. Mr. Meunier asked him to think about it and told him he was prepared to demonstrate flexibility about moves.

[43]       On March 13, he contacted Mr. Gélinas to discuss certain matters. He repeated that he would show flexibility and would try to get him a higher salary.

[44]       On March 14, he learned that Mr. Gélinas was not feeling well and had consulted a doctor. Mr. Meunier confirmed to him that he was prepared to offer the maximum on the salary scale, $84,057.

[45]       On cross-examination, he says that the position they were going to offer in Ottawa did not exist as such. It had to be adjusted to accommodate Mr. Gélinas' skills. He thinks Mr. Gélinas' duties in this new position would be important to FINTRAC. However, he made a distinction between what is necessary in order to be a good manager and what is necessary to be a good employee.

[46]       He confirms that the lack of judgment does not stem from the plaintiff's romantic involvement with Ms. Rocheville but from the fact that he did not disclose it earlier when his manager/employee relationship was compromised and created a situation of potential conflict of interest.

[47]       He admits that Ms. Rocheville had a good evaluation and a performance bonus after Mr. Gélinas' departure.

ISSUES

[48]       This action raises the following questions:

1.          Did the termination of employment infringe section 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, constituting Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11?

2.          Was the plaintiff's employment terminated for just cause?

3.          Absent just cause for dismissal:

(a)         to what reasonable compensation is the plaintiff entitled?

(b)         should reinstatement be ordered?

(c)         did the plaintiff mitigate the damages?

(d)         should punitive damages be awarded?

(e)         should damages for mental anguish be awarded?

ANALYSIS

1.          Section 15 of the Canadian Charter of Rights and Freedoms

[49]       The plaintiff argued that the defendant's acts, terminating his employment and offering him a lower-level position in Ottawa, constituted discrimination based on his marital status, in contravention of section 15 of the Canadian Charter of Rights and Freedoms, supra. The section 15 analysis adopted by the Supreme Court of Canada is based on the following three considerations: [1999] 1 S.C.R. 497=">Is it the purpose or effect of the law to impose a difference in treatment between the plaintiff and others on the basis of one or more personal characteristics? Is the differential treatment based on one or more of the enumerated or analogous reasons? Does the law in question have a purpose or effect that is discriminatory within the meaning of the equality guarantee? (Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497)

[50]       Putting aside, for the moment, the sufficiency of the defendant's reasons, the plaintiff has not adduced any evidence to show that the defendant's decision was in any way whatever related to his marital status. Irrespective of whether the plaintiff was married, getting a divorce or single during the relevant period, he was dismissed as a consequence of the relationship that had begun between him and a subordinate employee and his delay in informing his superiors of this.

[51]       In my opinion, it may be assumed that equivalent conduct on the part of another employee would have led to a similar result. In a nutshell, equality is a comparative concept (Law, supra, at paragraph 56) and, without a relevant "comparator", the plaintiff's Charter argument has no basis.

[52]       In this case, it is necessary instead to focus on the conflict of interests in which the plaintiff is alleged to have placed himself, his later conduct and the response by his employer.

2.          Was the plaintiff's employment terminated for just cause?

[53]       The defendant submits that Mr. Gélinas failed to meet FINTRAC's legitimate and reasonable expectations as well as the requirements of his employment contract and the relevant policies by failing to make timely disclosure to his employer of his intimate relationship with a subordinate. The defendant also criticizes the plaintiff for the recommendation he had made in November 2002 to reclassify Ms. Rocheville's position to a higher level. Finally, it criticizes the plaintiff for his refusal to acknowledge the lack of judgment and loyalty demonstrated by his conduct.

[54]       Notwithstanding the testimony of Ms. Cuddihy and Mr. Meunier that Mr. Gélinas was not dismissed because of his romantic relationship, I note that in the letter it sent to the plaintiff on May 1, 2003, FINTRAC states that the main reason in support of dismissal is the fact that the plaintiff had entered into an intimate relationship with a subordinate from which there resulted a conflict of interest.

[55]       Although, under the employment contract and the relevant policies, it was legitimate for FINTRAC to expect that Mr. Gélinas, as a manager, would display integrity, transparency and good judgment in his conduct and that he would disclose any actual or potential conflict of interest in a timely fashion, I am unable to find, either in the employment contract or in the relevant policies, any prohibition on having a romantic involvement with a subordinate.

[56]       Moreover, in the Guide on the Application of the Conflict of Interest and Post-Employment Code for the Public Service, (Treasury Board of Canada Secretariat) (Guide), it is clearly stated that a public official may be a supervisor of his or her spouse since no provision of the Act prohibits this. I must therefore find that it is not the fact of the relationship as such for which the plaintiff may legitimately be criticised but rather the fact that this relationship was not disclosed in timely fashion so that steps could be taken to avoid any real or potential conflict of interest.

The delay

[57]       FINTRAC essentially criticizes Mr. Gélinas for failing to make timely dislosure of his relationship to FINTRAC.

[58]       However, the plaintiff himself acknowledged in his testimony that the relationship could produce problems in a work environment including favouritism, perception of favouritism, abuse of power and sexual harassment, and thus that it was important to inform the employer of the situation at the earliest opportunity.

[59]       The evidence discloses that the plaintiff's interest in Ms. Rocheville developed throughout the autumn. He situates the beginning of the relationship in late December; however, judging by the frequency of the plaintiff's telephone calls to Ms. Rocheville during the fall of 2002 and the email sent to his son toward mid-January 2003, in which he admits having been unfaithful to his wife and having consulted a psychologist about this in the fall, I can infer that it is more plausible that the relationship began at a somewhat earlier point than the time admitted by the plaintiff. I note as well that in that email he admits to being passionately in love with another woman, which suggests that the relationship had already been going on for some time.

[60]       Whatever the case, the plaintiff waited until mid-February to disclose his intimate relationship. Does this delay demonstrate, in the circumstances, a lack of judgment of such magnitude that it constituted just cause for dismissal? I do not think so.

[61]       The record shows that the plaintiff decided to end his marriage and get a divorce in December. He tells his employer about this in January, displaying transparency since he was under no obligation to reveal his personal situation. At what point should he have disclosed his relationship with Ms. Rocheville? Perhaps in an ideal world he could have done so in January when he was reporting his divorce. He thought it better to wait until February. Can he be criticized for this? Love affairs do not develop in accordance with the laws of mechanics. Should he have notified his employer at the time when he first felt attracted to Ms. Rocheville, or when he had acquired some assurance that it was a serious and sustainable relationship? There is no obvious reply.

[62]       This leads me to analyze the situation of the employer during this one or two month period, to determine whether it suffered any damage. The evidence does not demonstrate this. The defendant has not proven that the relationship in itself affected its operations in any way or that it sullied its reputation, or that it was inconsistent with the plaintiff's duties as a manager or created a conflict of interest since even its own Guide provides that an employee may be the supervisor of his or her spouse.

[63]       This was a situation that necessitated some measures of accommodation, for example, in regard to Ms. Rocheville's evaluation. As the plaintiff suggested, this could have been done by another manager and the defendant has not demonstrated that this represented an insurmountable problem.

[64]       Moreover, although Mr. Gélinas is criticized for recommending Ms. Rocheville for a reclassification to a more senior position, she was never demoted after Mr. Gélinas' departure. If there had been undue influence on the part of Mr. Gélinas, and thus an injustice toward the other employees, the employer would have corrected the situation. Ms. Rocheville, on the contrary, benefited from an increase in salary in the two years that followed.

[65]       I recognize that transparency and integrity are important values to the employer but in the circumstances Mr. Gélinas did not conceal his relationship with Ms. Rocheville although he did delay its disclosure for a month or two at most. I do not think this omission demonstrates such a serious lack of judgment as to constitute a just cause for dismissal.

[66]       The cases cited by the defendant in support of its position concerned breaches that were much more serious than the one alleged against the plaintiff.

[67]       For example, in Smith v. Kamloops and District Elizabeth Fry Society (1996), 136 D.L.R. (4th) 644 (B.C.C.A.), the Court held that there was just cause for dismissal. However, the fact situation in Smith is quite different from the one in the case before us.

[68]       In Smith, supra, the employee was a social worker. She established a personal relationship with a sex offender who had been ordered to use a counselling service with the agency where the social worker was employed, in contradiction with explicit provisions in the code of professional ethics applicable to social workers. The employee actively tried to hide the existence of the relationship. When its existence was finally disclosed to the employer, after eight months, the employee refused to recognize that there was a conflict of interest. Moreover, the trial judge found that the conduct in question had probably resulted in harm to the employer agency.

[69]       The present case differs in regard to each of the following aspects: the relevant code of ethics does not explicitly prohibit the alleged conduct; there is no evidence that the plaintiff actively concealed the existence of the relationship from his employers; the employer in this case has failed to demonstrate, as the evidence indicates, that it suffered undue harm.

[70]       These are crucial contextual differences, the importance of which was emphasized repeatedly by the Supreme Court of Canada in McKinley v. BC Tel, [2001] 2 S.C.R. 161. Mr. Justice Iacobucci, writing on behalf of a unanimous Court, noted that a dishonest act does not automatically give rise to a right to dismiss an employee for a definite reason. On the contrary, "the test is whether the employee's dishonesty gave rise to a breakdown in the employment relationship" in the particular context in which the alleged misconduct occurred (McKinley, at paragraph 48).

[71]       Let us recall that in this case the conduct in question was rather a presumed failure to make timely disclosure rather than a dishonest act. Insofar as this failure can be construed as constituting dishonesty, the lack of evidence indicating that Mr. Gélinas deliberately concealed his relationship before he decided to disclose it is significant. In any event, I am not persuaded that FINTRAC has demonstrated that Mr. Gélinas' conduct violated an essential term of the contract of employment, constituted an abuse of confidence inherent to the employment or was fundamentally incompatible with the employee's duties to his employer, as required by McKinley, supra.

(a)         To what reasonable compensation is the plaintiff entitled?

[72]       The normal remedy for an employee dismissed without just cause is compensation in lieu of reasonable notice of termination.

[73]       Bordal v. The Globe and Mail (1960), 24 D.L.R. (2d) 140, the principles of which were affirmed by the Supreme Court of Canada in Wallace v. United Grain Growers Ltd. (Public Press), [1997] 3 S.C.R. 701, lists the factors that must be considered in the determination of reasonable compensation: the nature of the employment, the duration of the employee's service, his age, and the availability of alternative employment having regard to the employee's experience and qualifications.

[74]       At the time of his dismissal, the plaintiff was 46 years old and had been employed by FINTRAC for about a year and a half. He occupied a managerial position, as Eastern Regional Director, responsible for the administration of the Montréal office.

[75]       Having regard to the aforementioned factors, I am of the opinion that the reasonable compensation in the plaintiff's situation is four months.

[76]       The plaintiff's salary was $91,000 per year. The reasonable compensation will therefore be $30,333, to which I add a 6% performance bonus, or $5,460, for the period from April 1, 2002 to March 31, 2003. The defendant acknowledges that the plaintiff was a good employee, so it is probable that he would have had his 6% bonus during this period.

[77]       Moreover, since the plaintiff's new job began after the notice period, I am not deducting the salary earned at Sportcom.

[78]       Concerning the claim for employer contributions to the plaintiff's pension plan, the uncontradicted evidence of Ms. Cuddihy is that the period of acquisition of pension plan rights at FINTRAC is two years of service. Mr. Gélinas did not achieve two years of service, so he has no entitlement to the pension plan.

(b)         Reinstatement

[79]       The plaintiff is asking the Court to order his reinstatement in his former management position with FINTRAC. Although reinstatement is in theory possible as reparation for an employee's unjustified dismissal, it is very seldom used in the common law ([1934] S.C.R. 528">Dupré Quarries Ltd. v. Dupré, [1934] S.C.R. 528). One court has even gone so far as to assert that it is hard for it to conceive of the circumstances in which it would be possible in practical terms to order reinstatement in a management position (Backman v. Hyundai Auto Can. Inc. (1990), 100 N.S.R. (2d) 24 (N.S.S.C., T.D.)).

[80]       In any event, when the relationship of trust between employer and employee has substantially deteriorated, reinstatement is probably inappropriate (Atomic Energy of Canada Ltd. v. Scheikholeslami, [1998] 3 F.C. 349; Chalifoux v. Driftpile First Nation (2002), 237 F.T.R. 142 (F.C.A.)). In some employment situations it may be easier to reinstate, for example in large bureaucratic organizations with developed personnel management techniques and where the reinstated employee may be assigned to another division of the organization (G. England and I. Christie, Employment Law in Canada, 3rd ed., vol. 2), or where the employee may work independently.

[81]       Such is not the case here, however. The defendant is a small organization that has only four employees in its Montréal office who were supervised by the plaintiff. Accordingly, I am of the opinion that there is no valid reason that would warrant an order of reinstatement. The plaintiff cannot force the employer to keep him in its service when the employer has ruled that he had lacked judgment. In my opinion, the employment relationship has been irremediably breached.

(c)         Has the plaintiff mitigated the damages?

[82]       The defendant argues that the plaintiff breached his duty to mitigate the damages he is claiming by refusing FINTRAC's offer of alternative employment in Ottawa.

[83]       In [1976] 2 S.C.R. 324">Michaels v. Red Deer College, [1976] 2 S.C.R. 324, the Supreme Court of Canada held that a party who claims to have suffered damages has an obligation to minimize his loss.

[84]       In Mifsud v. MacMillan Bathurst Inc. (1989), 70 O.R. (2d) 701, cited by the defendant, the Ontario Court of Appeal explained that when the salary offered is the same, the working conditions are not substantially different and the personal relationships involved are not acrimonious, it is reasonable to expect the employee to accept the position offered in mitigation of damages.

[85]       However, in the present case the position offered involved a demotion; it was offered in a different city and although the employer displayed some flexibility concerning the working conditions, the salary offered was less than the one in the position that Mr. Gélinas held in Montréal. It was not, therefore, a position entailing the same working conditions. Furthermore, given Mr. Gélinas' personal situation, I do not think it was acceptable to require that he work in another city. Consequently, it was not unreasonable for him to refuse the job offered in Ottawa. Also, the plaintiff actively sought employment in Montréal. The record indicates that from May 2003 on, he made approximately 130 job searches, ultimately accepting an offer with Sportcom with a reduction in salary of $30,000. He cannot be criticized for not having mitigated the damages.

(d)         Should punitive damages be awarded?

[86]       Punitive damages are an exception to the general rule that damages are intended to restore the injured party to his original state.

[87]       Only vicious or malicious conduct can justify an award of punitive damages.

[88]       However, there is nothing in the record before me that can warrant an award of punitive damages. FINTRAC consistently acted in good faith and although I have concluded that the facts in this case did not amount to a just cause for dismissal, the employer acted without malice and attempted to remedy the situation by offering the plaintiff alternative employment.

(e)         Should damages for mental anguish be awarded?

[89]       The plaintiff presented no evidence that he had suffered any physical or mental injury attributable to the defendant. His health condition largely resulted from other personal problems including his divorce and the concerns that such a situation entails. There is no reason, therefore, to award damages for mental anguish.

Interest

[90]       Section 36 of the Federal Court Act, R.S.C. 1985, c. F-7, provides for the computation of prejudgment interest:

[91]       The cause of action arose in Quebec, so the interest will be calculated according to the C.C.Q.

[92]       For these reasons, the Court allows the plaintiff's action in part; orders the defendant FINTRAC to pay to the plaintiff the sum of $35,792, with interest and additional indemnity under article 1619 C.C.Q.

[93]       Regarding costs, I agree to hear the submissions of the parties following this judgment before ruling on this point.

ORDER

THE COURT ORDERS that the plaintiff's action is allowed in part; orders the defendant FINTRAC to pay to the plaintiff the sum of $35,792, with interest and additional indemnity under article 1619 C.C.Q.

                "Danièle Tremblay-Lamer"

                                Judge

Certified true translation

K.A. Harvey

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                           T-1190-03

STYLE:                                                Mr. Marc Gélinas v. Financial Transactions and Reports Analysis Centre of Canada

PLACE OF HEARING:                     Montréal, Quebec

DATE OF HEARING:                       November 19, 2004

REASONS FOR ORDER

AND ORDER:                                    Madam Justice Danièle Tremblay-Lamer

DATED:                                             December 17, 2004

APPEARANCES:

Bruno Meloche                                                              for the plaintiff

Georges Vuicic                                                              for the defendant

SOLICITORS OF RECORD:

Meloche Larivière

390 Notre-Dame St. W.,

Montréal, Quebec

H2Y 1T9                                                                                  for the plaintiff

Hicks Morley Hamilton Stewart Storie LLP

150 Metcalfe Street

Ottawa, Ontario

K2P 1P1                                                                                   for the defendant