Dismissal a damaging blow to articling student

Vancouver law firm ordered to pay $50,000 in aggravated damages plus wrongful dismissal damages for abrupt and bad-faith dismissal

After graduating law school in 2016, Melissa Ojanen commenced her articling placement at Acumen Law Corporation, a criminal law firm based out of Vancouver, under the supervision of Paul Doroshenko, founder of the firm.

However, less than four months later, Doroshenko fired her following the discovery of a blog providing information to people facing a driving ban — similar information to blogs maintained by the firm. It was alleged that she either created or participated in the the blog, which was based off proprietary firm information that she stole and, by doing so, directly competed with the firm.  

Instead of confronting Ojanen, Doroshenko commenced a lawsuit and she was served in front of her colleagues. Doroshenko claimed against Ojanen for breach of contract, theft, wrongful use of marketing materials belonging to the firm and entering the firm’s premises after hours without permission. Ojanen was unable to complete her articling to become licensed to practise law. 

Ojanen denied any wrongdoing and claimed against Doroshenko and his firm for wrongful dismissal, harassment, breach of contract, bad faith conduct, mental distress and aggravated damages. 

Doroshenko’s claims against Ojanen were unequivocally dismissed as untenable at law, without merit and unsupported by evidence. The court focused its analysis on whether Ojanen’s conduct constituted just cause for termination of her articles and employment. 

The employment relationship was governed by two contracts: a written articling agreement between Ojanen and Doroshenko — running for a term of 12 months — and an unwritten employment agreement between Ojanen and Acumen Law.

The allegations of misconduct included:

•  Trespassing by entering the office after hours without permission

•  Failing to attend a court appearance

•  Engaging in belligerent conduct at a work function in August 2016

•  Insubordination by failing to follow Doroshenko’s instruction when he asked Ojanen to leave the office in August 2016

•  Taking materials belonging to the firm and its client home without permission

•  Competing with the firm through the blog

•  Permitting access to confidential materials.

The court summarized the applicable legal principles, noting that just cause requires  misconduct such that the employment relationship could no longer viably exist; the onus of proof of misconduct lies on the employer; an employer must either terminate employment or condone the misconduct by allowing employment to continue; and condoned misconduct no longer constitutes just cause unless new facts come up.

Most of the allegations were rejected by the court or abandoned by Doroshenko at trial, but some were carefully considered.

For example, Ojanen admitted that she was intoxicated and displayed poor conduct at a work function in August 2016. However, the court held that Acumen treated the conduct as grounds for discipline short of termination and, in doing so, condoned it. Another serious allegation was Ojanen’s failure to notify Doroshenko when she became aware that her husband had accessed Acumen materials that she brought home. Although the court classified this behaviour as a serious error in judgment, it held that it wasn’t dishonesty going to the root of the employment relationship. Regarding the blog, the court found that it did not constitute competing with the firm. The blog did not offer legal advice; it merely provided general information concerning roadside prohibitions and could have been written by anyone based on information in the public domain. Moreover, Doroshenko was unable to provide any evidence that his policy of not permitting associates to establish a web presence outside of the firm’s control was known. 

The court determined that Ojanen’s conduct, individually or cumulatively, did not amount to just cause and she was wrongfully dismissed. 

Wrongful dismissal, aggravated damages

The court began with ordinary breach of contract principles and sought to put Ojanen in the position she would have been had she not been wrongfully dismissed, which it valued at $18,934, payable by Acumen.

Ojanen was unable to secure alternate employment to complete her articles and was not called to the bar. She also failed the bar exam, which the court acknowledged may have been related to the trauma from being served with a lawsuit in front of her colleagues and being accused of deceitful conduct. For this she sought damages for loss of opportunity to become a lawyer. Although the court sympathized with Ojanen, it found such an award would be speculative and awarded her nominal damages of $10, payable by Doroshenko personally.

Finally, the court awarded an additional $50,000 in aggravated damages, payable by Acumen, for bad faith in the manner of termination, highlighting the following:

•  Dismissing Ojanen without asking her about her involvement in the blog

•  Serving Ojanen in front of her classmates — ‘unnecessary and psychologically brutal … a deliberately public firing’

•  Accusations of deceit and dishonesty based on ‘unfounded suspicions’

•  The effect of Doroshenko’s actions, rendering her unemployable in the legal profession

•  Persisting in unfounded allegations through the litigation process to trial.

Takeaways for employers

Terminations should be conducted in a respectful, dignified and private manner. If employers are considering a just cause termination, they should be mindful that it is a high legal threshold. Employers should carefully review the facts and investigate the situation, not jump to a conclusion.

About the Author

David J. Master is an associate lawyer working at  Littler LLP and advises employers on the full spectrum of employment and labour law issues. He can be reached at (647) 256-4536 or dmaster@littler.com.

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