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From bad to worse: the perils of pursuing claims against vulnerable former employees

Richard B. Johnson

Co-Founder + Partner
May 17, 2021

The BC case of Acumen Law Corporation v. Ojanen is an important cautionary tale for employers and particularly those that hire students in articled or apprenticeship positions.

The case involved an articled student, Ms. Ojanen, who worked for Acumen Law Corporation under her principal and the firm’s founder, Paul Doroshenko. Nearly four months into her articles, the firm and Mr. Doroshenko dismissed Ms. Ojanen and terminated her articles. As the trial judgment states:

The consequences for Ms. Ojanen were severe.  She was unable to obtain alternate articles and has not been called to the bar.  For the most part she has been unemployed.  For three months she was homeless, and she is presently supported by her parents.

Trial Decision (2019 BCSC 1352)

If the dismissal itself was not impactful enough to Ms. Ojanen, Acumen sued her and alleged breach of contract, theft, wrongful use of marketing materials belonging to the firm, and trespass for allegedly entering into the firm’s premises after hours without permission. However, that’s not all. The firm had the Claim served on Ms. Ojanen in front of her bar admission classmates.

The firm conceded it did not suffer losses from the claims alleged against Ms. Ojanen.

Not surprisingly, Ms. Ojanen denied the allegations against her and claimed against Acumen and Mr. Doroshenko for wrongful dismissal, and alleged harassment and intimidation by Mr. Doroshenko. Her claims included bad faith, aggravated and mental distress damages.

In a thorough decision, the BC Supreme Court dismissed the claims brought by Acumen and Mr. Doroshenko against Ms. Ojanen. However, the Court held that Ms. Ojanen was wrongfully dismissed and awarded her $18,934 in wrongful dismissal damages as well as aggravated damages of $50,000. Further, Ms. Ojanen’s claims against Mr. Doroshenko personally were allowed, and she was awarded nominal damages of $10.

The trial decision created ripples in the legal community and brought to the surface issues relating to the mistreatment of articled students. The decision also arose at a time when consideration was being given to whether articled students should be provided protections under the BC Employment Standards Act (which currently explicitly excludes lawyers and articled students from its protections).

Appeal Decision (2021 BCCA 189)

Not to be deterred by what appears a clear and resounding trial decision, Acumen and Mr. Doroshenko appealed the decision.

The firm had the right to appeal of course. However, in the writer’s opinion, the decision to appeal and perpetuate the litigation against Ms. Ojanen likely did Acumen and Mr. Doroshenko no favours as it telegraphed their intention to perpetuate the difficulties they had already created for her, as noted by the trial court.

Perhaps not surprisingly, Ms. Ojanen cross-appealed for further damages.

In further denunciating the conduct of Acumen and Doroshenko, the Court of Appeal unanimously dismissed their appeal and allowed Ms. Ojanen’s cross appeal. The Court:

–          increased Ms. Ojanen’s general damages against Acumen by $100,000 (for a total of $118,934); and

–          awarded Ms. Ojanen $25,000 in punitive damages jointly and severally against Acumen and Dr, Doroshenko.

These awards were in addition to the aggravated damages of $50,000 against Acumen and $10 against Mr. Doroshenko awarded by the trial judge. 

The Court of Appeal found that the dismissal undermined Ms. Ojanen’s opportunity to become a lawyer, and held that it would have been within the contemplation of the parties when entering into the contract that Ms. Ojanen would lose that opportunity if the contract was wrongfully terminated. As such, the Court of Appeal held that the trial judge erred in not awarding punitive damages given that the general and aggravated damages were insufficient to achieve the goals of denunciation, deterrence and retribution in light of the appellants’ “high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour.”

It is noteworthy that the Law Society of British Columbia intervened in the case. While one can surmise as to its position on the circumstances, the nature of the Law Society’s intervention and submissions are not explained in the decision.

Summary

The Acumen decisions provide a clear warning to employers and those responsible to shepherd students into a profession, to act with good faith and ensure that they think twice before scuttling the student’s opportunities with a dismissal.

In the writer’s opinion, this decision will be relied upon in instances outside of the legal articling process, and is potentially applicable to accountancy and apprenticeship situations, which necessarily involve a power imbalance between established and stable businesses and professionals on the one hand, and students in need of experience, guidance and opportunities to learn their craft on the other hand.