Canadian Employment Law Today

Canadian HR Reporter, 2019 Canadian Employment Law Today | 3 Cases and Trends 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 BY DAVID MASTER AFTER GRADUATING law school in 2016, Melissa Ojanen commenced her articling placement at Acumen Law Cor- poration, a criminal law firm based out of Vancouver, under the supervision of Paul Doroshenko, founder of the firm. However, less than four months later, Do- roshenko fired her following the discovery of a blog providing information to people fac- ing 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, Doro- shenko commenced a lawsuit and she was served in front of her colleagues. Dorosh- enko 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 per- mission. 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. e court focused its analysis on whether Ojanen's conduct constituted just cause for termination of her articles and employment. e employment relationship was gov- erned by two contracts: a written articling agreement between Ojanen and Dorosh- enko — running for a term of 12 months — and an unwritten employment agreement between Ojanen and Acumen Law. e 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 Doro- shenko'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. e court summarized the applicable legal principles, noting that just cause requires misconduct such that the employment re- lationship could no longer viably exist; the onus of proof of misconduct lies on the em- ployer; an employer must either terminate employment or condone the misconduct by allowing employment to continue; and condoned misconduct no longer consti- tutes 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 con- duct as grounds for discipline short of termi- nation and, in doing so, condoned it. Anoth- er serious allegation was Ojanen's failure to notify Doroshenko when she became aware that her husband had accessed Acumen ma- terials that she brought home. Although the court classified this behaviour as a serious error in judgment, it held that it wasn't dis- honesty going to the root of the employment relationship. Regarding the blog, the court found that it did not constitute competing with the firm. e blog did not offer legal advice; it merely provided general informa- tion concerning roadside prohibitions and could have been written by anyone based on information in the public domain. More- over, Doroshenko was unable to provide any evidence that his policy of not permitting as- sociates to establish a web presence outside of the firm's control was known. e court determined that Ojanen's con- duct, individually or cumulatively, did not amount to just cause and she was wrong- fully dismissed. Wrongful dismissal, aggravated damages e 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 val- ued 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. Al- though 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 ter- mination, highlighting the following: • Dismissing Ojanen without asking her about her involvement in the blog • Serving Ojanen in front of her classmates — 'unnecessary and psychologically bru- tal … a deliberately public firing' • Accusations of deceit and dishonesty based on 'unfounded suspicions' • e effect of Doroshenko's actions, render- ing 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 re- spectful, dignified and private manner. If employers are considering a just cause ter- mination, they should be mindful that it is a high legal threshold. Employers should care- fully review the facts and investigate the situ- ation, not jump to a conclusion. ABOUT THE AUTHOR David Master 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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