Judge finds B.C.-based criminal law firm engaged in ‘bullying’ of former student
In a case that has caused a stir in the B.C. legal community, a B.C. Supreme Court judge has ruled that a local criminal firm fired an articling student without just cause and engaged in “bullying” against the student.
Acumen Law Corporation’s Paul Doroshenko spoke with Canadian Lawyer and though he did not comment on the ruling directly, he said he’s had 18 articling students during his firm’s existence and never had a problem before.
“I had one student with whom I worked for 3 months that ended in this difficult litigation,” says Doroshenko, who’s firm specializes in driving-related offences. “It is difficult to capture that experience in a couple days of trial, or in a judgment, three years after the fact.”
On Aug. 13, B.C. Supreme Court Justice Geoffrey Gomery dismissed Doroshenko’s and Acumen’s claim against former articling student Melissa Ojanen for breach of contract, theft, trespassing and wrongful use of Acumen marketing materials, and awarded Ojanen $68,944 in damages for wrongful dismissal.
In 2016, Ojanen spent four months as an articling student at Acumen before she was let go. Doroshenko and Acumen sued Ojanen, claiming she was using stolen files to create a driving-law blog to compete with the firm for clients.
Gomery found Acumen did not have just cause to fire Ojanen. Gomery said Doroshenko “jumped to the conclusion” Ojanen’s intention with the blog was nefarious. Doroshenko served Ojanen with her termination letter while she was attending a professional legal training course class, a “deliberately public firing” that was “unnecessary and psychologically brutal” wrote Gomery, who added that Acumen and Doroshenko “have persisted in unfounded allegations” three years later, making Ojanen unemployable in the legal profession.
“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,” said the decision.
Ojanen declined to comment and directed inquiries toward her lawyer Mark Gervin. Gervin also declined to comment on the ruling but said, “The judgement will be our only response presently.”
Gomery dismissed Doroshenko and Acumen’s claim against Ojanen and her claim against Acumen rested on whether the firm had just cause in firing her. “Just cause” requires finding that Ojanen’s misconduct was severe to the extent that their employment relationship could “no longer viably exist,” with the onus being on the employer to prove it, said Gomery in the decision.
Ojanen’s alleged misconduct included being in the office after hours without permission, missing a court appearance, “disloyal and trouble-making” behaviour, insubordination, refusing a direction to attend counselling, “avoiding responsibility” showing she was “unfit to practice law,” taking client files home and creating a blog to compete with Acumen and allowing her husband access to privileged materials.
The “disloyal” and “trouble-making” conduct came from a dinner party where two of Ojanen’s colleagues testified she was intoxicated and complained about how little money she was making. Gomery saw the incident as falling short of breaching Ojanen’s duty of loyalty to the firm and further stated that Acumen disciplined her it without terminating her employment, thus condoning the conduct.
It was the aftermath of the dinner that led to the allegation of insubordination. Doroshenko called Ojanen to his office and suspended her for a week – concluding the meeting with a demand she “get out of the office and leave now,” according to the decision. Ojanen went to Lee’s office to talk to her, found Lee unwilling to engage and then left. Doroshenko and Acumen argued the failure to leave immediately amounted to insubordination and cause for immediate termination. But, following the same logic as with the party, Gomery said the fact Acumen didn’t fire her then shows it isn’t just cause after the fact.
After the suspension, Ojanen and Doroshenko reconvened and Ojanen was instructed to attend counselling. Though Acumen and Doroshenko said she failed to do so, Gomery said she attended five sessions, through the Lawyer Assistance Program. Gomery rejected the claim of insubordination.
The accusation of trespassing came from Ojanen’s coming into the office during the evenings with keys the firm had given her, and Gomery rejected the allegation. Gomery also rejected that her missing a court appearance amounted to misconduct as it was a “trivial incident” and “the client’s interests were not harmed.”
As to the claim Ojanen avoided responsibility and demonstrated she was unfit to practice law, Gomery said in the decision there was “no merit” to this allegation and that “In his evidence in chief, Mr. Doroshenko invoked a sexist stereotype of female incompetence in describing this alleged practice.” Gomery relied on evidence that before the staff party, Doroshenko told Ojanen he’d have her back after articles, later told her he was happy with her work and that his displeasure with Ojanen’s behaviour at the staff party “had nothing to do with the quality of her work,” said the decision.
Doroshenko and Acumen said Ojanen knew she was not to take any file material home without permission. Another Acumen articling student Stephanie Skinner testified she too took material home and Lee testified that, though she told Ojanen not to take anything privileged out of the office, she did allow Ojanen to take certain materials home with her. Doroshenko testified he “made it clear” Ojanen was not to remove client files from the office. Gomery was not persuaded Acumen had a rule made known to Ojanen she couldn’t take client-work home.
Ojanen’s contractual duty of loyalty required her not to enter into competition with Acumen while articling there and Doroshenko and Acumen argued she took files home to develop a blog and competing driving-law practice, thereby breaching that duty. Ojanen said it was her husband at the time – Nicholas Dominato – who created the blog and Ojanen denied she had a part in it or that she gave Dominato permission to use Acumen’s client material to inform the blog’s content.
After discovering it, Doroshenko investigated the blog by making an inquiry in a friend’s name. He received an email from Dominato’s email account where Ojanen identified herself as a law student at Acumen and recommended the firm. Ojanen denied it was her who sent the email and Gomery rejected that claim but found the fact the inquiry into the blog had produced an Acumen recommendation showed she was not using the blog to compete with the firm.
The last allegation was that Dominato accessed privileged client material and Ojanen failed to alert Doroshenko. Though the evidence showed this happened, Gomery saw it as a “serious error in judgment, but not a fundamental breach of her obligations,” said the decision.
“I have had great feedback from my students about their articling experience. Many of them have remained with my office and are still here today,” Doroshenko says. “They were loyal to my office and have gone on to successful careers in law.”