Ojanen v Acumen Law Corporation, 2021 BCCA 189 is a new case out of B.C. where a law firm employer alleged just cause for dismissal of an articling student and was slammed with a general damages award of $118,000 and a punitive damages award of $25,000.
During the articling term, the employer discovered a website operated by the employee that it believed threatened the firm’s competitive position. They fired the employee and sued for breach of contract, theft, trespass, and wrongful use of materials. The employee claimed for wrongful dismissal, and the two actions were tried together.
The employer’s actions were dismissed at trial and on appeal, but the employee was successful at both litigation stages.
The case should serve as an important warning to employers that harsh termination of an employee can come with severe consequences.
Facts in Ojanen
The employee had some performance and misconduct issues during her articling term.
During the articling term, the employer discovered that the employee had been posting articles to a blog called “B.C. Driving Prohibitions Blog”, which had similar content and topics to that posted on the employer’s site.
The court found that the blog posts were not identical to the ones on the employer’s website, did not infringe copyright, and did not disclose non-public information or client confidences.
After the employer discovered the blog posts, it did not have a meeting to warn the employee, ask about the posts, or get context. Rather, it terminated her employment (and articles) without severance for “deceitful conduct and dishonesty” and served a theft claim on her in front of her Professional Legal Training Course classmates.
Analysis and Conclusion
The court and court of appeal found that the performance and misconduct issues were not significant enough alone or collectively to amount to just cause for dismissal.
The lower court found in favor of the employee. The employer appealed, and that was dismissed. The employee cross-appealed, looking for additional damages.
The court of appeal found quite dramatically in favor of the employee, awarding $118,000 in general damages for loss of earning capacity, as well as $25,000 in punitive damages to punish the employer, reasoning as follows:
[62] […] The trial judge’s failure to award damages for loss of opportunity was an error in principle. The law has long recognized that the fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages for a breach of contract. […]
[63] What Ms. Ojanen lost as a result of her wrongful termination was the opportunity to become a lawyer at the end of the articling period. […]
[…]
[65] The trial judge found that as a result of the Appellants’ conduct, Ms. Ojanen’s ability to find employment in the legal profession had been delayed for over three years. […]
[…]
[70] I am satisfied that Ms. 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.
[…]
[79] The question for determination is whether, in light of the Appellants’ conduct, the compensatory damages awarded to Ms. Ojanen are sufficient to accomplish the objectives of denunciation, deterrence, and retribution. For ease of reference, I would repeat the trial judge’s unchallenged findings concerning the conduct of the Appellants:
[128] The following conduct of Acumen and Mr. Doroshenko stands out as unfair and unduly insensitive:
a) Doroshenko decided to dismiss Ms. Ojanen without asking her about her involvement with the Blog and her intentions in undertaking it. He had not told her that internet postings that trenched on Acumen’s practice interests were forbidden. When he learned of the Blog, he jumped to a conclusion that she was setting herself up in competition with Acumen. It should have been obvious to him from Ms. Ojanen’s email of September 14, 2016 that her intention was to refer work to Acumen as the opportunity arose;
b) The decision to serve Ms. Ojanen in front of her classmates at PLTC was unnecessary and psychologically brutal. Ms. Ojanen lived a short walk from Acumen’s office. Mr. Doroshenko knew her address. In his evidence, Mr. Doroshenko suggested that he made the decision to serve Ms. Ojanen at PLTC because the server could not locate her at home. This is manifestly untrue. The notice of civil claim was filed on September 16 and Ms. Ojanen was served before classes were done for the day. This was a deliberately public firing;
c) In the termination letter and the notice of civil claim served on Ms. Ojanen on September 16, Acumen and Mr. Doroshenko accused her of deceit and dishonesty. These accusations were harsh and unwarranted. The only basis for these accusations were unfounded suspicions;
d) 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;
e) Acumen and Mr. Doroshenko have persisted in unfounded allegations against Ms. Ojanen through the litigation process to this trial, three years later.
[129] The usual power imbalance between employer and employee was accentuated in this case. Ms. Ojanen was 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.
[130] In short, Mr. Doroshenko’s response on discovering the Blog was disproportionate and bullying. I find that he was determined to protect Acumen’s competitive position by making an example of Ms. Ojanen.
[Emphasis added.]
[80] The conduct described by the trial judge can properly be described in the language of Whiten as “high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour.” The awards of general and aggravated damages are not sufficient to achieve the goals of denunciation, deterrence, and retribution but must be taken into account in determining the appropriate award. Taking into account those awards, I would award $25,000 in punitive damages. Absent the awards for general and aggravated damages, the award for punitive damages would be higher. […]
My Take on Ojanen
Ojanen is somewhat striking, first because of the amount of general damages for lost future opportunity. Usually terminated employees are entitled to “reasonable notice” severance, which is not the same thing as lost future opportunity and in this case would have resulted in much lower damages. This award was to compensate the employee for the damage the employer’s actions had on the employee’s ability to earn a living as a lawyer.
The second reason Ojanen is striking is because of the punitive damages award. Punitive damages are not awarded very often, and even when they are awarded, $25,000 is fairly high in Canada.
Ojanen should serve as a clear warning to employers: when you terminate someone’s employment, be as considerate as you can be. Resist the urge to fulfill some retaliatory fantasy, because if you treat employees harshly, you may receive the same treatment in court.
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Ojanen v Acumen Law Corporation, 2021 BCCA 189 can be found at the following link on CanLii: https://www.canlii.org/en/bc/bcca/doc/2021/2021bcca189/2021bcca189.html?resultIndex=1
