Lower court judge erred in not factoring in lost opportunity to become a lawyer, appeal court says
An articling student whom a Vancouver criminal law firm fired for alleged trespassing, breach of contract and questionable blog postings has seen her award for damages more than tripled after the Court of Appeal for British Columbia ruled the lower court judge erred in not awarding damages for her lost opportunity to become a lawyer.
“It would have been within the parties’ reasonable contemplation when they entered the contract that the respondent would lose the opportunity to become a lawyer if the contract was wrongfully terminated," Justice Richard Goepel wrote on behalf of the three-judge panel who heard the appeal.
In dismissing the appeal of Acumen Law and its founder Paul Doroshenko, the appeal court increased the general damages awarded to former articling student Melissa Ojanen by $100,000 - to $118,934 from $18,934 - and awarded $25,000 in punitive damages. Ojanen also received aggravated damages of $50,000 and is entitled to the appeal and cross-appeal costs.
The decision of the highest court in B.C. “sends a strong message that in appropriate circumstances, employers will be exposed to substantial liability when they engage in misconduct,” says employment law lawyer Stuart Rudner. This conduct can include “baseless allegations of just cause for dismissal.
“That is particularly true when it has a readily identifiable impact on the employee’s career.”
In ruling in favour of Ojanen’s request for improved awards for damages, Justice Goepel wrote: “The trial judge erred in not awarding punitive damages, as the general and aggravated damages awards were insufficient to achieve the goals of denunciation, deterrence, and retribution in light of the appellants’ highly reprehensible misconduct.”
Goepel acknowledged that “an award for loss of opportunity is, by its very nature, a matter of assessment, as it is impossible to say with certainty what would have happened absent the wrongful dismissal. The assessment must consider the likelihoods of various possibilities as well as positive and negative contingencies.”
However, he ruled that he is satisfied that Ojanen has “established on a balance of probabilities that she is entitled to an award for loss of opportunity.
“The award cannot be calculated with mathematical precision. In the circumstances of this case, I would award her $100,000 for loss of earning capacity.”
On Aug. 13, 2019, B.C. Supreme Court Justice Geoffrey Gomery, the trial judge, dismissed the claims of Acumen and Doroshenko against Ojanen for breach of contract, theft, trespassing and wrongful use of Acumen marketing materials. Justice Gomery also awarded Ojanen $18,944 in general damages and $50,000 for aggravated damage, a total of almost $69,000.
Ojanen lost her job after spending four months in 2016 as an articling student at Acumen. Doroshenko and Acumen then sued Ojanen, claiming she was using stolen files to create a driving-law blog to compete with the firm for clients.
Justice Gomery found Acumen did not have just cause to fire Ojanen. He wrote that Doroshenko “jumped to the conclusion” that Ojanen’s intention with the blog [in question] was nefarious.
Added Gomery: “She is the victim of unfair, bullying, bad-faith conduct by her former employer and her former principal and has suffered substantial and prolonged emotional distress because of that conduct.”
The relationship between Ojanen and Doroshenko started well, with Doroshenko even advising the articling student in August 2016 that he desired to employ her following the completion of her articles.
Shortly after that, the relationship deteriorated.
According to the appeal court decision, on Aug. 5, Ojanen attended an after-work staff party where she admittedly drank too much and complained about her salary and a colleague. Doroshenko suspended Ojanen on Aug. 8, took her keys to the office and asked her to leave the office immediately.
Ojanen sent apologetic messages to colleagues and wrote a letter to Mr. Doroshenko expressing a desire for continued employment. A few days later, Doroshenko reinstated Ojanen on the condition that she attend counselling and not enter the office after hours. He eventually returned her keys in late August.
Doroshenko’s discovery of a website entitled “B.C. Driving Prohibitions Blog” sparked the decision to terminate Ojanen’s articles and her employment in September 2016, the appeal court said. The blog offered information of interest to people facing a driving prohibition. Acumen provided similar information in the blogs it maintained. Doroshenko considered his firm’s blog an essential part of Acumen’s marketing effort and believed the other blog threatened Acumen’s competitive position and that Ojanen was behind it.
Acumen specializes in what it describes as “driving law,” which includes defending criminal and regulatory offences while driving, reviewing driving prohibitions and related requirements imposed under the Motor Vehicle Act, conducting judicial review applications arising from decisions of the superintendent of motor vehicles, and defending traffic tickets. As part of the firm’s marketing efforts, Acumen maintains informational blogs.
The trial judge found that while the articles posted on the blog in question were similar to articles published by Acumen, they were not identical. He found the blog did not infringe on copyright, nor did it disclose private information that Acumen had not themselves made public. The blog did not disclose client confidences, and anyone making use of information in the public domain could have written similar material.
Ojanen denied that she was involved in creating the blog. She maintained that her husband at the time, Nicholas Dominato, had made the blog, including having written driving law posts based on materials she had brought home. While acknowledging that these materials belonged to Acumen and its clients., she said Dominato did not have her permission to access them. Ojanen said she only became aware that he had created the blog in early September 2016 as a gift. She said she told him to take it down but that he said he wanted to maintain it.
The trial judge found that while the blog might have been Dominato’s project at first, he rejected Ojanen’s testimony that she had nothing to do with it. He also rejected her claim that her then-husband refused her request to take the blog down. He found Ojanen participated in the blog from the time it was posted on the Internet.
In his decision, Justice Gomery wrote: “To the extent that there is any substance to the complaints concerning Ms. Ojanen’s conduct, taking everything together and adopting the contextual approach required . . . I am not persuaded that there was dishonesty or equivalent conduct giving rise to a breakdown of the employment relationship.”
In their appeal, Acumen and Doroshenko did not challenge the trial judge’s findings of fact. Instead, they argued the trial judge erred in his analysis by not considering the special relationship between a principal and articled student mandated by the rules and requirements of the Law Society of B.C. The appellants argued the judge wrongly concluded Ojanen’s conduct did not breach the employment relationship or justify termination because it fell short of dishonesty.
However, the appeal court ruled that the actions of Doroshenko stand out “as unfair and unduly insensitive,” It ruled Doroshenko decided to dismiss Ojanen without asking about her involvement with the blog and jumped to the conclusion she was setting herself up in competition with Acumen.
Rudner says it is “interesting” that Acumen tried to argue that this was a special relationship and that the assessment of irreparable harm should take into account the reciprocal trust required in the principal-articled student relationship.
But Rudner notes the Court of Appeal rejected this argument. “As the appeal court stated: ‘Common law employment principles related to just cause require a contextual approach, which necessitates consideration of all of the circumstances, including the nature of the employment relationship and the position of the employee.’”
In other words, he says, “every case is to be assessed based upon its own particular set of facts and circumstances, and this case does not require the application of different principles.
“This is a point we make all the time and is critical to understand: conduct that is just cause for dismissal in one case may not be in another, given all the relevant circumstances.”
The appeal court said the decision to serve Ojanen her termination notice in front of her classmates while attending a Professional Legal Training Course was an “unnecessary and psychologically brutal” deliberate public firing.
Goepel wrote: “The obvious probable consequence of the termination, lawsuit, and Mr. Doroshenko’s report to the Law Society, was to render Ms. Ojanen unemployable in the legal profession for so long as the allegations against her remained in play.”
The appeal court also ruled that the “usual power imbalance” between employer and employee was accentuated by Ojanen being a young woman without local contacts in the legal profession.
“Mr. Doroshenko was the head of an established law firm. Ms. Ojanen was terribly vulnerable. Mr. Doroshenko was possessed of reputational capital and financial resources. He was not content simply to fire her but took full advantage of his favoured position to launch a campaign against Ms. Ojanen through this lawsuit.” Goepel wrote that he believed Doroshenko’s goal was to protect Acumen’s competitive position by making an example of Ms. Ojanen.
Ojanen’s cross-appeal also raises an important point on assessing damages, Rudner says.
“In this case, the trial judge chose not to compensate the plaintiff for the fact that the wrongful dismissal and related allegations against her rendered her unemployable within the legal profession, finding such damages to be speculative,” he says. “The Court of Appeal disagreed, holding that she lost the opportunity to become a lawyer at the end of her articles and should be compensated for that.”
Rudner notes that although the trial judge declined to award punitive damages, the Court of Appeal found that the defendant’s conduct was malicious and high-handed enough that the awards of general and aggravated damages were not sufficient to achieve the goals of denunciation, deterrence, and retribution.
Doroshenko and Ojanen were not able to be reached for comment.