Acumen Law Corporation v. Ojanen

2019 BCSC 1352 Acumen Law Corporation v. Ojanen

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Acumen Law Corporation v. Ojanen, 2019 BCSC 1352 Date: 20190813 Docket: S183564 Registry: New Westminster Between: Acumen Law Corporation and Paul Doroshenko Plaintiffs And Melissa Kristine Ojanen, also known as Melissa Kristine Dominato, and Nicholas Dominato Defendants - and - Docket: S195688 Registry: New Westminster Between: Melissa Dominato Plaintiff And Acumen Law Corporation and Paul Doroshenko Defendants Before: The Honourable Mr. Justice Gomery Reasons for Judgment Counsel for Acumen Law Corporation and Paul Doroshenko: T. Harding Appearing in person M. Ojanen Place and Dates of Trial: New Westminster, B.C. June 17-21 and July 2-3, 2019 Place and Date of Judgment: New Westminster, B.C. August 13, 2019 Table of Contents Introduction. 3 Background. 4 Credibility and proposed adverse inference. 5 Analysis. 6 A) Are Acumen and Mr. Doroshenko entitled to relief against Ms. Ojanen?. 6 B) Did Ms. Ojanen commit misconduct constituting just cause for termination of her articles and her employment?. 11 Legal principles. 11 The allegations of misconduct 12 The Employment Relationship. 13 Did Ms. Ojanan enter Acumen's premises after hours without permission?. 16 Did Ms. Ojanen fail to attend a scheduled court appearance in June 2016?. 18 Did Ms. Ojanen engage in disloyal and trouble-making activity at the party and restaurant

dinner on August 5, 2016?. 19 Was Ms. Ojanen insubordinate on August 8, 2016 or subsequently?. 20 Did Ms. Ojanen avoid responsibility and demonstrate that she was unfit to practice law?. 23 Did Ms. Ojanen obtain possession of materials belonging to Acumen or its clients without permission?. 23 Did Ms. Ojanen enter into competition with Mr. Doroshenko and Acumen by creating the Blog?. 25 Did Ms. Ojanen permit Mr. Dominato access to privileged materials of Acumen's clients and confidential materials belonging to Acumen and fail to notify Mr. Doroshenko of the breach of privilege?. 28 Cumulative effect of the allegations of misconduct 30 Conclusion concerning Ms. Ojanen's claim for wrongful dismissal 30 C) What are Ms. Ojanen's damages?. 31 Ordinary damages. 31 Aggravated or moral damages. 32 (1). Was the conduct of Acumen and Mr. Doroshenko unfair or undertaken in bad faith?. 34 (2). Did Ms. Ojanen suffer emotional or health consequences which exceeded a norm for dismissed employees?. 36 Conclusion concerning aggravated damages. 37 Disposition. 37 Introduction [1] Acumen Law Corporation ("Acumen") hired Melissa Ojanen as an articled student. Paul Doroshenko was Ms. Ojanen's principal. A little less than four months after Ms. Ojanen started work, Mr. Doroshenko and Acumen terminated her articles and her employment. 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. [2] Ms. Ojanen's brief tenure as an articled student has given rise to two lawsuits that were tried together. [3] Acumen and Mr. Doroshenko claim against Ms. Ojanen for breach of contract, theft and wrongful use of marketing materials belonging to Acumen, and trespass by entering into Acumen's premises after hours without permission. They concede that they have not suffered any financial injury, but seek "notional damages" and the return of materials they say Ms. Ojanen took and has not returned. To be clear, the notional damages sought are not nominal damages but substantial damages without proof of loss. [4] Ms. Ojanen denies any misconduct or that she is in possession of anything belonging to Acumen or Mr. Doroshenko. She claims against Acumen and Mr. Doroshenko for wrongful dismissal. She pleads that she was harassed and intimidated by Mr. Doroshenko. She further maintains that she is entitled to damages for breach of contract, bad faith conduct, mental distress, and aggravated damages. [5] The issues are: a) Are Acumen and Mr. Doroshenko entitled to relief against Ms. Ojanen? b) Did Ms. Ojanen commit misconduct constituting just cause for termination of her articles and her employment? c)

If not, what are Ms. Ojanen's damages for wrongful dismissal? Background [6] Mr. Doroshenko was called to the bar of British Columbia in 2000. He founded Acumen in 2008 and remains the sole proprietor of the firm. In 2016, Acumen employed several associate lawyers at three offices in the Lower Mainland and one in Victoria. The senior associate is Kyla Lee. [7] Acumen specializes in what Ms. Lee compendiously described as "driving law", including the defence of criminal and regulatory offences committed while driving, reviewing driving prohibitions and related requirements imposed under the Motor Vehicle Act, R.S.B.C. 1996, c. 318, conducting judicial review applications arising from decisions of the Superintendent of Motor Vehicles and the Superintendent's delegates, defending traffic tickets, and so on. The practice also includes some criminal defence work unrelated to driving. While driving law is a niche practice area, Acumen has made a meal of it. According to Mr. Doroshenko and Ms. Lee, Acumen has established itself as the leading law firm in the area. They work hard to market the firm's services by various means, including social media, and are understandably protective of its competitive position. [8] Ms. Ojanen is a native British Columbian who attended law school in Ontario. She graduated in April 2016. In 2015 she had contacted Mr. Doroshenko, looking for articles in

Vancouver. He agreed to hire her following her graduation in 2016. Pursuant to the Law Society's rules, her period of articles would last 12 months and be interrupted by the ten-week Professional Legal Training Course ("PLTC"). [9] Ms. Ojanen's employment began on May 24, 2016. Her attendance at PLTC was scheduled to begin on September 12, 2016. [10] Shortly before commencing her articles, Ms. Ojanen married Nicholas Dominato. Mr. Dominato was her law school classmate. In some of the pleadings she is named Melissa Dominato. Ms. Ojanen and Mr. Dominato were sharing an apartment during the events in issue. They are now separated and a divorce is pending. Although Mr. Dominato is named as a defendant in the action commenced by Acumen and Mr. Doroshenko, the claim against him was settled and dismissed by consent on July 10, 2017. [11] Ms. Ojanen worked at Acumen's Vancouver office. The other lawyers working in the Vancouver office when she started were Mr. Doroshenko, Ms. Lee, Joshua Vandenham, and John Cheevers. During her time at the firm, Mr. Vandenham left. Stephanie Skinner was an articled student in the Vancouver office whose time with the firm overlapped Ms. Ojanen's time. [12] Mr. Doroshenko's decision to terminate Ms. Ojanen's articles and her employment was triggered by his discovery of a website entitled "BC Driving Prohibitions Blog" (the "Blog"). The Blog came into

existence in early September 2016. It offered information of interest to persons facing a driving prohibition. Equivalent information was offered through blogs maintained by Acumen and Ms. Lee that Mr. Doroshenko considered an important part of Acumen's marketing efforts. Mr. Doroshenko believed that the Blog threatened Acumen's competitive position, and that Ms. Ojanen was behind it. [13] While the articles posted on the Blog are similar to articles posted by Acumen and Ms. Lee on their blogs, they are not identical. The Blog does not infringe on copyright. It does not disclose private information that Acumen and Ms. Lee have not themselves made public. It does not disclose client confidences. The Blog could have been written by anyone making use of information in the public domain. Credibility and proposed adverse inference [14] There are irresolvable conflicts in the evidence given by Mr. Doroshenko and Ms. Ojanen concerning some of their dealings. Each of them made appropriate concessions and left the impression of a witness who was sincerely trying to tell the truth. Neither entirely succeeded; each gave evidence I do not accept. As often occurs, portions of their evidence were coloured by hindsight and reconstruction, and by dramatically different perceptions of each other's actions and motivations. In argument, each accused the other of wholesale fabrication. [15] I do

not accept that either Mr. Doroshenko or Ms. Ojanen is generally a liar whose evidence cannot be accepted. Some of their disagreements I need not resolve. There are relevant disagreements that I cannot resolve; for these, I must fall back on the burden of proof. For the rest, I have been able to find the facts necessary to decide this case having regard to the factors summarized by Madam Justice Adair in Gichuru v. Smith, 2013 BCSC 895 at paras. 129-130. In particular, as Adair J. put it, I have evaluated the testimony for "its consistency with the probabilities of the surrounding conditions or circumstances". My findings are set out in the course of my reasoning below. [16] Although both sides listed Mr. Dominato as a potential witness in their trial briefs, neither called him to testify at trial. Acumen and Mr. Doroshenko contend that I should draw an inference adverse to Ms. Ojanen because she did not call Mr. Dominato as a witness. I do not accept this submission. Acumen and Mr. Doroshenko examined Mr. Dominato for discovery before they settled with him. Both sides knew what he had to say. His evidence was equally available to both parties and I am unable to say whether it probably would have helped one side more than the other. In these circumstances, I am not prepared to draw an adverse inference; Thomasson v. Moeller, 2016 BCCA 14 at para. 35; Singh v. Reddy, 2019 BCCA

79 at paras. 8 and 24-28. Analysis A) Are Acumen and Mr. Doroshenko entitled to relief against Ms. Ojanen? [17] Acumen and Mr. Doroshenko concede that they have not suffered financial loss in consequence of Ms. Ojanen's alleged misconduct. They claim notional damages in an amount equal to twice the amounts paid by Acumen to or for the benefit of Ms. Ojanen during the few months of employment. They seek injunctive relief as follows: a) Return of data and material allegedly stolen from Acumen; b) A permanent injunction prohibiting Ms. Ojanen from marketing legal services using any data or material obtained from Acumen or Mr. Doroshenko; and c) A permanent injunction prohibiting Ms. Ojanen from using the web domain name, "roadsideprohibitions.com" or any similar name. Finally, they seek punitive damages. [18] The legal proposition underlying the claim for notional damages is that a defendant who is guilty of trespass or conversion may be ordered to pay damages at large, without reference to any loss suffered by the plaintiff. This legal proposition is unfounded. Damages for conversion and the related tort of detinue are not at large. The basic measure of damages for both torts is the value of the property in question; Louis Klar et al, Remedies in Tort (looseleaf) (Toronto, Tomson Reuters: 2019), c. 4, ss. 61-62. The date of valuation varies between conversion and detinue and

consequential loss can also be claimed. None of this assists Acumen and Mr. Doroshenko because they concede that Ms. Ojanen took nothing of value that belonged to them. [19] It is true that a defendant guilty of trespass or conversion (among certain other torts) may be required to disgorge profits achieved by the defendant through her wrongful conduct; John McCamus and Peter Maddaugh, The Law of Restitution (looseleaf) (Toronto, Thomson Reuters: 2018), ss. 24:100 and 24:300. Ms. Ojanen did not profit from anything she did or is alleged to have done in this litigation. I should add that a claim that Ms. Ojanen should disgorge even the modest amounts paid to her and for her benefit as an articling student - much less twice those amounts - overlooks the benefit obtained by Acumen from her services. The claim for notional damages is unsustainable. [20] The factual propositions underlying the claims against Ms. Ojanen for injunctive relief are that she stole and has retained data and material from Acumen, is still using that data and material to market legal services in competition with Acumen, and is also utilizing a "roadside prohibitions" web site in competition with Acumen. None of these propositions is supported by the evidence. [21] Ms. Ojanen started PLTC as scheduled on Monday, September 12, 2016. She had client file materials and materials belonging to Acumen at her home.

She testified that she had taken them home for work and study purposes. [22] Between September 10 and 14, Mr. Doroshenko learned of and investigated the Blog. He did not communicate with Ms. Ojanen. Instead, on Friday, September 16, Acumen and Mr. Doroshenko commenced this action against Ms. Ojanen. They caused the notice of civil claim to be served on Ms. Ojanen that day in front of her PLTC classmates. The process server also gave to Ms. Ojanen a letter which stated: Dear Ms. Dominato: RE: Termination of Your Articles Your employment and articles are terminated, effective immediately. I am terminating you for violating the Articling Agreement, deceitful conduct, and dishonesty. I have notified the Law Society of this decision and the reasons for it. If you have any belongings remaining in the office, you may email Kyla and identify those belongings, which will be mailed to you at your address. Yours truly, (signed) Paul Doroshenko [23] Ms. Ojanen retained Daniel Le Dressay as counsel. At trial she testified that she delivered to Mr. Le Dressay everything belonging to Acumen in her possession. On September 23, 2016, Mr. Le Dressay delivered to Acumen's counsel materials he had received from Ms. Ojanen. In a covering letter he stated: Together with this letter are two boxes and a plastic package. The contents are, I am informed, file materials and resources for work that Ms.

Melissa Dominato had taken home to complete assignments of work as part of her articling student legal work assigned to her by your client's firm members. The tactics employed by your client preliminary to and coincidental with the termination of Ms. Dominato's articles and her employment made it impossible for her to return these materials to the offices of Acumen Law Corporation. I am returning them to you as the solicitor for the Acumen Law Corporation. [24] Mr. Doroshenko and Acumen contend that the materials returned by Mr. Le Dressay were incomplete. They rely upon an inventory of the material prepared by an Acumen staff member. Mr. Doroshenko testified that he checked the inventory, but did not perform an item-by-item review. He testified that a hard copy of a cross-examination script was not returned. Acumen recovered the script from its electronic records. He testified that vendor invoices went missing from Acumen's accounting office in September 2016. He suspects that Ms. Ojanen took the missing invoices. [25] In cross-examination, counsel for Acumen and Mr. Doroshenko, Mr. Harding, did not put to Ms. Ojanen that she had stolen vendor invoices or a cross-examination script. He did cross-examine Ms. Ojanen generally on materials allegedly retained by her. Ms. Ojanen denied that she remains in possession of materials belonging to Acumen or its clients. Mr. Harding put

to Ms. Ojanen an affidavit apparently sworn by Mr. Dominato in 2017 in which Mr. Dominato conceded that he was in possession of a scanned copy of an Acumen client file until October 2016 and a copy of a binder containing Acumen practice materials until June 2017. Ms. Ojanen testified that she was unaware that Mr. Dominato was in possession of materials belonging to Acumen or its clients after she delivered material to Mr. Le Dressay in September 2016. [26] I accept Ms. Ojanen's evidence that she is no longer in possession of material belonging to Acumen or its clients. In providing extensive materials to Mr. Le Dressay for delivery to Acumen's counsel, she had no sensible reason to hold back selected materials, and I find that she did not. I accept Ms. Ojanen's evidence that she was unaware of any materials retained by Mr. Dominato. I reject the accusation that Ms. Ojanen stole vendor invoices from Acumen's accounting offices; there is no plausible reason why she would have done that and Mr. Doroshenko's evidence on this point does not establish that she did. [27] There is therefore no basis for an order that Ms. Ojanen return to Acumen material and data stolen from Acumen, or that she be enjoined from competing with Acumen using material or data obtained from Acumen or Mr. Doroshenko. [28] In September 2017, Ms. Ojanen had some involvement with the Blog. The details of her

involvement are controversial and I will address them later in these reasons. There is no evidence that the Blog continued in existence after September 2017 and every reason to believe that it has lapsed. [29] Ms. Ojanen did not complete PLTC, and she did not obtain alternate articles. Apart from two episodes of short term employment, she had not worked for a law firm since her employment with Acumen ended. She is in not a position to market legal services or compete with Acumen in any way. It was not suggested in cross-examination that she has done so. [30] It is unclear on what legal basis Acumen and Mr. Doroshenko might seek to prohibit Ms. Ojanen from competing with them after her employment ended by maintaining a blog or otherwise. Their notice of civil claim alleges that she stole trade secrets, but there is no evidence that she was ever in possession of or misused information that could be described as a trade secret. She did not appropriate corporate opportunities belonging to Acumen. Her obligation not to compete with her employer came to an end when her employment ended. In any event, she is not doing so. [31] The claims against Ms. Ojanen for injunctive relief are unsustainable. That leaves only the claim advanced against her for punitive damages. It is founded on Acumen's allegations that Ms. Ojanen trespassed in its office, stole its files and data, and attempted

to compete with it while she was employed there. I reject these allegations in the next section of these reasons where I deal with Ms. Ojanen's claim for wrongful dismissal. The claim for punitive damages fails accordingly. [32] Acumen and Mr. Doroshenko's action against Ms. Ojanen is dismissed. B) Did Ms. Ojanen commit misconduct constituting just cause for termination of her articles and her employment? Legal principles [33] Ms. Ojanen's claim against Acumen and Mr. Doroshenko is an action for wrongful dismissal, that is, breach of the contracts governing her employment as an articled student. Acumen and Mr. Doroshenko terminated the contracts on September 16, 2016. The question is whether they were justified in doing so. Justification - that is, "just cause" - requires a finding that Ms. Ojanen was guilty of misconduct amounting to a breach of a contract of employment such that the employment relationship could no longer viably exist; McKinley v. BC Tel, 2001 SCC 38 at para. 29; Gichuru v. Smith, 2014 BCCA 414 at para.

12. In other words, there must have been misconduct amounting to a fundamental breach of the contract. [34] The onus of proof of misconduct lies on the employer. Madam Justice Griffin outlined the approach I must take in Hawkes v. Levelton Holdings Ltd., 2012 BCSC 1219 at para. 30, aff'd 2013 BCCA 306: The law is clear that not every act of dishonesty justifies dismissal without notice. Rather, the court must consider the context of the alleged misconduct, examining how minor or how serious it was. The principle of proportionality applies, requiring a balancing between the severity of the alleged misconduct and the sanction imposed by the employer . [35] An employer who is made aware of misconduct that could constitute just cause must elect whether to terminate the employment relationship or condone the misconduct by allowing the employment relationship to persist, notwithstanding the misconduct; McIntyre v. Hockin (1889), 16 O.A.R. 498 at 501-502; Staley v. Squirrel Systems of Canada, Ltd., 2013 BCCA 201 at para.

40. The employer's election must be made within a reasonable time of learning of the misconduct. Misconduct that the employer has condoned no longer constitutes just cause unless new facts come to light placing a different complexion on the matter. Further misconduct on the part of the employee may do just that, so that acts of misconduct must be considered both individually and cumulatively; Smith v. Pacific Coast Terminals Co. Ltd., 2016 BCSC 1876 at paras. 205-215; aff'd 2017 BCCA 197. The allegations of misconduct [36] Acumen and Mr. Doroshenko plead the following allegations of misconduct: a) Ms. Ojanen entered Acumen's premises, alone and with Mr. Dominato, after hours and without permission; b) Ms. Ojanen failed to attend a scheduled court appearance in June 2016; c) Ms. Ojanen engaged in disloyal and "trouble making" activity at an office party and subsequent dinner with co-workers on August 5, 2016, and by making untenable accusations against co-workers; d) Ms. Ojanen was insubordinate and disobeyed Mr. Doroshenko's instructions by failing to leave the office immediately when she was asked to on August 8, 2016 and by refusing to attend counselling as she was instructed to; e) Ms. Ojanen avoided responsibility and demonstrated that she was unfit to practice law; f) Ms. Ojanen took materials belonging to Acumen and its clients home without permission; g) Ms. Ojanen

entered into competition with Acumen by creating the Blog and posting materials on it based on and similar to blog postings by Mr. Doroshenko and Ms. Lee for Acumen's benefit; h) Ms. Ojanen permitted Mr. Dominato access to privileged materials of Acumen's clients and confidential materials belonging to Acumen and failed to notify Mr. Doroshenko of the breach of privilege. [37] All of these allegations were addressed in the evidence. However, in final argument, Mr. Harding pursued only the allegations of trespass (a), theft (e), disloyalty through attempted competition (f), and permitting access to privileged and confidential materials (g). The breadth of the allegations pleaded is important to an understanding of Ms. Ojanen's claim and I will address all of them. The Employment Relationship [38] The employment relationship was governed by two contracts: an Articling Agreement between Ms. Ojanen and Mr. Doroshenko; and an Employment Agreement between Ms. Ojanen and Acumen. [39] The terms of the Articling Agreement were fixed by the Law Society. It provides as follows: Articling Agreement Between: Paul Doroshenko (the "Principal") of Acumen Law Corporation (the "Firm") And: Melissa Ojanen (the "Student") for the period May 2016 - May 2017 (the "Articling Term"). The Principal and the Student, in accordance with the Legal Profession Act and the Law Society rules, agree that during the Articling Term, they will abide by the following terms: General 1. The Principal will act as principal to the Student and ensure that the Student is instructed on the practice of law and professional conduct.

2. The student will: · Diligently and loyally provide his or her services as an articled student to and for the benefit of the Firm as reasonably directed by the Principal and other members of the Firm; · Observe all office rules and policies of the Firm; and · Strictly safeguard all privileged or confidential information of the clients of the Firm. Mentoring 3. The Principal will mentor the Student throughout the Articling Terms, including while the Student is being supervised by other lawyers, by: · Maintaining continued contact with the Student; · Monitoring the Student's performance; · Meeting with the Student from time to time; · Discussing with the Student his or her work and progress; and · Providing the Student with advice and direction on his or her development as a lawyer. Ethics and Professionalism 7. The Principal and the Student will ensure that the Student is instructed in: · A lawyer's duties to the courts, clients, the public, other members of the profession and him or herself, and the proper discharge of those duties; · Acting in a manner becoming a professional; and · Appropriate ethical standards and professionalism as described in the Checklist. Certification The Principal and the Student Certify that they have met and discussed the terms of this Articling Agreement. 04 Nov 2015 "M Ojanen" Date Signature of Student November 18, 2015 "P. Doroshenko" Date

Signature of Principal [40] The parties to the Articling Agreement are Ms. Ojanen and Mr. Doroshenko. While the Articling Agreement contemplates Ms. Ojanen's employment by Acumen, it is not an agreement between Ms. Ojanen and Acumen. It does not address terms of employment such as the compensation payable to Ms. Ojanen. [41] The Employment Agreement between Acumen and Ms. Ojanen is unwritten. Its terms must be taken to reflect the obligations assumed under the Articling Agreement, so far as the Articling Agreement bears on the employment relationship between Ms. Ojanen and Acumen. In brief, Acumen agreed to pay Ms. Ojanen a base salary, vacation pay, and commissions for certain tasks performed on behalf of clients of the Firm. During her attendance at PLTC, Acumen must pay Ms. Ojanen 50% of her base salary. Based on her final pay statement, Ms. Ojanen's base salary and vacation pay amounted to $687 per week. [42] The Articling Agreement ran for a 12 month term from May 2016 to May 2017. There was no provision for early termination on reasonable notice. It follows that the Employment Agreement could not be terminated on reasonable notice, because Ms. Ojanen could only be required to provide services as an articled student while she was being paid by Acumen. Ms. Ojanen was accordingly entitled to have her employment continue for the full term of the contract, unless she was

guilty of misconduct constituting just cause for immediate termination; Acumen was entitled to Ms. Ojanen's services for the full 12 months on the same basis. [43] Ms. Ojanen's central obligations to Mr. Doroshenko and Acumen under both agreements are set out in section 2 of the Articling Agreement. She must diligently and loyally provide services to and for the benefit of Acumen as reasonably directed by Mr. Doroshenko and other members of the firm (such as Ms. Lee), observe all office rules and policies of Acumen, and strictly safeguard all privileged or confidential information of Acumen's clients. [44] The obligation to observe office rules and policies is limited to rules and policies that were made known to Ms. Ojanen or ought reasonably to have been discerned by her; Hawkes at para. 71. [45] The Articling Agreement incorporates by reference provisions of the Legal Profession Act, S.B.C. 1998, c. 9 and Law Society Rules, so far as they bear upon the rights and obligations of principals and articled students towards one another. While it does not directly incorporate professional obligations summarized in the Code of Professional Conduct, those professional obligations inform the rights and obligations of principals and articled students towards one another. [46] The express obligation stated in the Articling Agreement to safeguard confidential information pertains to

client confidences, not information that the firm may view as sensitive for competitive or other reasons. If an obligation to protect the firm's confidences (as opposed to client confidences) is imposed, it must be either as a consequence of Ms. Ojanen's duty of loyalty or by virtue of office rules and policies made known or that ought reasonably to have been discerned by Ms. Ojanen. [47] Mr. Doroshenko's central obligation to Ms. Ojanen under the Articling Agreement is to mentor her, including while she is being supervised by other lawyers. [48] Ms. Ojanen's instruction in ethics and professionalism is a mutual obligation of Ms. Ojanen and Mr. Doroshenko. Did Ms. Ojanan enter Acumen's premises after hours without permission? [49] As I have noted, Ms. Ojanen started work with Acumen on May 24, 2016. Her articles formally commenced on May 27. She spent the first week being oriented and trained by shadowing Ms. Skinner. Within the first few days, she was given keys to the building and the office and the code to the alarm system. [50] Over the months of June and July until August 5, Ms. Ojanen's duties were straightforward and followed a pattern established by Acumen with previous articled students. She spent mornings and often the day attending various courts in the Lower Mainland for procedural appearances such as arraignments or appearances to fix dates in connection with

criminal charges. On one or two occasions, she spoke to sentence in connection with a guilty plea. Apart from that, she wrote letters on behalf of clients requesting administrative relief in connection with requirements imposed on drivers by the Office of the Superintendent of Motor Vehicles. These letters were written following firm precedents. They were always reviewed by a lawyer. Ms. Ojanen also performed legal research for lawyers and other tasks on files they were working on. [51] Ms. Ojanen quite quickly found much of the work repetitive and uninteresting. It is common ground that she asked Mr. Doroshenko for more interesting work. She spent a great deal of time driving between courthouses. Ms. Ojanen's driving left her little time for written work and research and she frequently came into the office to work in the evening and on weekends when no one else was around. [52] Mr. Doroshenko and Ms. Lee testified that it should have been possible for Ms. Ojanen to complete all of her work in time to leave the office by 5:30 pm or so, and she should not have had to work evenings and weekends. However, Ms. Skinner testified that she sometimes had to work evenings, even as late as midnight. It is notorious within the legal profession that lawyers and articling students sometimes work very long hours. I accept Ms. Skinner's evidence and find that it was the same for Ms.

Ojanen. [53] Motion-activated surveillance cameras are installed in the hallway leading to the entrance to Acumen's offices and in the office foyer. It is possible to identify the dates and times of Ms. Ojanen's entries into the office after hours. She came into the office after hours on four days in June, 18 days in July, and four days in early August. Following an incident I will describe later in these reasons, Mr. Doroshenko took her keys away on August 8. On August 12 he instructed her not to come into the office after hours. [54] Mr. Doroshenko was aware that Ms. Ojanen was coming into the office outside ordinary office hours, at least occasionally, before he repossessed her keys on August 8. He specifically recalls two occasions when she was there with Mr. Dominato, and he had no objection. On August 2, 2016, Mr. Doroshenko sent Ms. Ojanen and Ms. Skinner a text message indicating satisfaction with their work and a desire to employ them both following completion of their articles. He stated: I'm hoping to keep both of you on when your articles are done. You've both expressed a desire to stay, you're both smart and interesting. We can generate work for you both. [55] Ms. Ojanen replied: Thank you, that is generous of you. That is exciting news [56] I reject the allegation that Ms. Ojanen committed misconduct by coming into Acumen's office after hours and on weekends in

June, July and August, 2016. It is obvious that she was permitted and expected to attend the office outside ordinary office hours until her keys were taken away. [57] In late August, 2016, Mr. Doroshenko directed that Ms. Ojanen's keys be returned to her. There is no evidence as to a discussion at that time. I find that it was reasonable for Ms. Ojanen to infer that she had permission again to enter the office after hours. She did not come into the office after hours again until September 9 and 10. [58] On Wednesday, September 14, Ms. Lee texted Ms. Ojanen to request that she return a file that she had been working on at home, with Ms. Lee's express permission. Ms. Ojanen and Mr. Dominato entered Acumen's offices after hours to return the file. Ms. Ojanen collected her framed law school diploma from the wall of her office. They encountered Mr. Doroshenko, who was working late. He asked Ms. Ojanen for her office keys, and she handed them over. He did not mention his discovery of the Blog or ask Ms. Ojanen about her activities. He did not suggest that she had no business being on Acumen's premises after hours. [59] Mr. Doroshenko testified that he was intimidated by Mr. Dominato, describing him as "the muscle". I do not accept that Mr. Dominato did anything to intimidate Mr. Doroshenko on this or any other occasion. By this time, Mr. Doroshenko had decided to terminate Ms.

Ojanen's employment. He said nothing of substance to Ms. Ojanen at this time because he had decided to deal with Ms. Ojanen through counsel in the context of legal proceedings to be pursued aggressively by Acumen. [60] I reject the allegation that Ms. Ojanen committed misconduct by coming into Acumen's office after hours on September 9, 10 and 14. She was not a trespasser. Did Ms. Ojanen fail to attend a scheduled court appearance in June 2016? [61] Ms. Ojanen failed to attend on time an arraignment hearing at the Provincial Court in Vancouver for a client charged with a serious criminal offence. The charge was being prosecuted by Regional Crown Counsel, who telephoned Ms. Lee on the morning of the hearing. Ms. Lee gave Crown Counsel Ms. Ojanen's telephone number. Ms. Ojanen was attending court in Abbotsford that morning. She had misunderstood the scheduling protocol in a case prosecuted by Regional Crown Counsel. When she spoke with Crown Counsel, they arranged for her to attend later in the morning and the arraignment took place that day. I accept Ms. Ojanen's evidence that this incident took place on August 4, 2016. [62] This was a trivial incident. It was the product of a misunderstanding and the client's interests were not harmed. Ms. Ojanen was not guilty of misconduct. Did Ms. Ojanen engage in disloyal and trouble-making activity at the party and restaurant dinner on

August 5, 2016? [63] Acumen hosted a party in the boardroom in the Vancouver office at the end of the work day on Friday, August 5, 2016. The party marked the impending departure of Mr. Vandenham and a staff member. It began at roughly 4:30 pm. Food and drinks were served. Mr. Doroshenko left at 5:30 pm and nothing of significance happened before he left. The party carried on. [64] I heard the evidence of Ms. Lee, Ms. Skinner and Ms. Ojanen as to what happened after that. There is no more disagreement between them than is to be expected in the circumstances. There may have been a brief and awkward interaction between Ms. Ojanen and Ms. Skinner, though Ms. Lee did not mention it in her evidence. Towards the end of the office party, a few lawyers were sitting around the boardroom table. The group included two lawyers who did not testify, Ms. Leamon and Ms. Roudette. Ms. Ojanen had been drinking. She began to talk about how much money she was making. Ms. Lee understood that she was complaining that it was not very much, and she tried to assure Ms. Ojanen that her financial situation would improve as she acquired clients and files of her own. In the course of the discussion, Ms. Ojanen mentioned that she had not been cashing some of her paycheques. [65] The party ended. Ms. Leamon, Ms. Roudette, Ms. Lee and Ms. Ojanen went on to a restaurant. Ms. Skinner did not. I am left with the

evidence of Ms. Lee and Ms. Ojanen as to what occurred at the restaurant. There is some consistency in their accounts and, to the extent that there is disagreement, I accept Ms. Lee's account because it is more detailed and Ms. Ojanen acknowledges that she was intoxicated. Champagne was flowing. Ms. Ojanen became worked up and complained that Ms. Skinner was trying to seduce or steal her husband, Mr. Dominato. Others tried to persuade Ms. Ojanen that she was misinterpreting Ms. Skinner's conduct. Ms. Ojanen was not persuaded and eventually left, saying that there was much more she could say about Acumen. [66] The next day, Ms. Ojanen sent Ms. Leamon a text wondering "do I still have a job on Monday lol". Ms. Leamon replied that "if someone didn't get wasted at the staff party then it would be a shitty staff party". [67] I am not persuaded that Ms. Ojanen's poor conduct at the party and in the restaurant afterwards amounted to a breach of her duty of loyalty under the Articling Agreement. The duty of loyalty may accommodate a certain amount of grumbling among members of the firm, and even drunken accusations against a co-worker on a social occasion outside the office. Even if Ms. Ojanen's conduct amounted to a breach of her duties to Acumen, the misconduct was not so serious as to constitute just cause for termination of her employment. Acumen treated the episode as grounds for

discipline falling short of termination of Ms. Ojanen's employment. By doing so, it condoned Ms. Ojanen's conduct. I describe the discipline below. Was Ms. Ojanen insubordinate on August 8, 2016 or subsequently? [68] Several people, including Ms. Lee, texted Mr. Doroshenko with accounts of Ms. Ojanen's conduct at the party and in the restaurant. He was angry. He spoke with Ms. Lee. On Monday, August 8, he summoned Ms. Ojanen to his office. [69] There is no disagreement between Mr. Doroshenko and Ms. Ojanen as to the essential elements of their meeting. Mr. Doroshenko told Ms. Ojanen that he had received reports from four people concerning her behaviour. She wanted to offer her perspective on what had occurred and he told her that he did not want to hear from her. Mr. Doroshenko told her that she had offended others at the party and the restaurant. He did not want to discuss details of what had occurred. He told her that he was deeply concerned about her dedication to the firm. He gave her a copy of the Articling Agreement and told her he wanted her to think about it. He told her that she was suspended and confiscated her office key. She was to come back to the office at the end of the week, on Friday, and they would discuss her future. He refused further discussion. He told Ms. Ojanen to get out of the office and leave now. [70] Ms. Ojanen says that Mr. Doroshenko swore at her.

He says that he raised his voice but did not swear. I need not decide whether he swore. Swearing aside, on his account, he was harsh, unwilling to hear Ms. Ojanen, and left her in doubt as to her future with Acumen. She was upset and crying at the end of the meeting. [71] Ms. Ojanen left Mr. Doroshenko's office but did not leave Acumen's premises immediately. She went to Ms. Lee's office and tried to engage her in a discussion as to what had happened and why she was suspended. She sat in Ms. Lee's office for a short time but Ms. Lee was unwilling to talk about it and Ms. Ojanen eventually left. [72] Acumen and Mr. Doroshenko contend that Ms. Ojanen's insistence on speaking with Ms. Lee following her meeting with Mr. Doroshenko, and her failure to follow his instruction to get out of the office and leave now, was an act of insubordination constituting cause for her immediate termination. I reject this argument. Ms. Ojanen's conduct cannot be understood as a repudiation of her obligations as an articled student. It was an understandable response to Mr. Doroshenko's treatment of her at the meeting. Even if Ms. Ojanen's failure to leave the office immediately could be understood as insubordination, her conduct was condoned by Acumen's decision to continue her employment. [73] Later that day, Ms. Ojanen texted Ms. Leamon, Ms. Roudette and Mr. Vandenham to apologize if she had

offended them and to explain that she had had too much to drink. Each replied, accepting her apology. [74] On Thursday, August 11, 2016, Ms. Ojanen sent Mr. Doroshenko a long letter expressing gratitude for her employment at Acumen and admiration for Mr. Doroshenko's abilities and accomplishments. This was in anticipation of the meeting the next day to discuss Ms. Ojanen's future with Acumen. The letter was obviously intended to flatter Mr. Doroshenko and reassure him of Ms. Ojanen's commitment to the firm. Ms. Ojanen concluded: I could not be more grateful for the opportunity I have to work for you and hope that I won't let you down again. As I have told you, I am extremely loyal and desire to continue being a dutiful employee. I am honoured to work with you and such an established firm and have only hoped to contribute in a positive way. [75] On Friday, August 12, 2016, Mr. Doroshenko met with Ms. Ojanen again and told her that she could return to work on conditions. He required her to go for counselling, and to satisfy him that she had done so. He instructed her that she was no longer to come into the office unaccompanied during evenings and weekends. As I have noted, he did not return the office keys to her at this meeting. [76] For the balance of the month of August, Ms. Ojanen testified that her work assignments changed and she was given more menial tasks. [77] Ms. Ojanen

arranged to attend counselling through the Lawyer Assistance Program and made this known to Mr. Doroshenko, who accepted it as satisfying the counselling requirement he had imposed. She attended five counselling sessions between August 15 and September 9. [78] Acumen and Mr. Doroshenko plead that Ms. Ojanen "failed or refused to attend any counselling". This plea is unfounded. I doubt that it was open to Mr. Doroshenko to require his articled student to attend counselling as a condition of her continuing employment. In any event, she did as he asked. [79] Late in August, Ms. Ojanen's keys were returned to her. However, she did not enter the office outside working hours again until late on Friday, September 9, which was her last day of work before starting PLTC. [80] Ms. Ojanen testified that, on September 9, she asked Mr. Doroshenko for a performance review. Starting PLTC was an important milestone and Ms. Ojanen was understandably anxious for feedback. She testified that Mr. Doroshenko told her that she had done well and he was happy with her work. He said that she would go to PLTC and return to Acumen to finish her articles. Mr. Doroshenko does not recall discussion of a performance review. He accepts that he may have assured her that she would come back and finish her articles at Acumen, while denying that he told Ms. Ojanen that he was happy with her work and had no issues.

He says that he wished her well and was trying to be supportive. In this light, I accept Ms. Ojanen's evidence of this discussion. Mr. Doroshenko condoned all of Ms. Ojanen's conduct he was aware of to this point. [81] In summary, there is no merit to the allegation that Ms. Ojanen was insubordinate. Did Ms. Ojanen avoid responsibility and demonstrate that she was unfit to practice law? [82] Acumen and Mr. Doroshenko plead that Ms. Ojanen adopted a practice of avoiding responsibility by deliberately pretending to misunderstand instructions making it effectively impossible for the lawyers to assign her work that was not menial. In his evidence in chief, Mr. Doroshenko invoked a sexist stereotype of female incompetence in describing this alleged practice. This was a low point in his evidence. There is no merit to the allegation that Ms. Ojanen deliberately avoided responsibility or performed her work incompetently. Until the staff party in early August, Mr. Doroshenko was impressed by Ms. Ojanen and planned to keep her on after articles. His upset with her after the party had nothing to do with the quality of her work. As I have noted, on her last day in the office before PLTC, he told her that he was happy with her work and had no issues. Did Ms. Ojanen obtain possession of materials belonging to Acumen or its clients without permission? [83] Ms. Ojanen took materials belonging

to Acumen and its clients home from time to time and still had materials at her home in the first week of her studies at PLTC. Acumen says that she should not have taken anything home without express permission from a lawyer. Alternatively, it maintains that anything she had taken home should have been returned by the time she started PLTC. [84] In final argument, Mr. Harding submitted that Mr. Doroshenko and Ms. Lee "made it clear that Ms. Ojanen was not to remove client files from the office, beyond the very minimal material she might need to speak to an adjournment or confirm joint submissions". This submission is not supported by the testimony of Mr. Doroshenko and Ms. Lee. [85] Mr. Doroshenko testified that there should have been no reason for Ms. Ojanen to have taken files home with her, and students were only "overtly authorized" to take files home to take to a court appearance the next day. He did not say that he instructed Ms. Ojanen not to take files home. [86] Ms. Lee went a little further. She testified that she instructed Ms. Ojanen to preserve privilege and that she thought she made it clear to Ms. Ojanen that she should not remove privileged material from the office, although she acknowledged in her evidence that she expressly permitted Ms. Ojanen to take the "K" file home to work on. Ms. Lee said that there was a lot of practice material in the office "that we

wanted to keep a lid on". She did not testify that she or anyone instructed Ms. Ojanen that practice material was not to leave the office. [87] If there was a prohibition on removing files from the office without express permission, it was not made known to Ms. Skinner. She testified that there were times she took client files home for the purpose of educating herself and learning, as a student should. She also took home practice material such as templates for cross-examination. [88] I find that Acumen did not have a rule made known to Ms. Ojanen that she should not take file materials or client materials home. [89] Ms. Ojanen received relatively little instruction from Mr. Doroshenko and Ms. Lee. She was keen to learn. Like Ms. Skinner, she took home materials from the firm, including client files, for the purpose of educating herself and as precedents for work she was performing on other files. Ms. Ojanen's preference was to take an entire file rather than just the portions she would most likely require. [90] I am not persuaded that Ms. Ojanen took files home for improper reasons. Ms. Lee identified some of the files returned by Mr. Le Dressay on September 23, 2016 as files Ms. Ojanen had no reason to be working on. In cross-examination, Ms. Ojanen gave reasons for her possession of various files returned by Mr. Le Dressay. The articling period exists to provide to articling

students the opportunity to learn to be competent lawyers through exposure to the work of qualified lawyers. I accept that Ms. Ojanen's purpose was to educate herself to be a competent lawyer in the fields of law in which Acumen practised. Moreover, Ms. Ojanen had reason to hope she might remain with the firm on her call to the bar. [91] By bringing materials home, Ms. Ojanen did not breach her duty of loyalty to Acumen or rules made known to her or reasonably discerned by her. She was not guilty of misconduct. Did Ms. Ojanen enter into competition with Mr. Doroshenko and Acumen by creating the Blog? [92] Ms. Ojanen's duty of loyalty required her not to enter into competition with Acumen while she was an articled student. Acumen maintains that Ms. Ojanen breached her duty of loyalty by creating the Blog and entering into competition with Acumen. [93] Mr. Doroshenko testified that it was his policy not to permit associates of the Firm to establish any web presence of their own without his permission and control over its contents. There is no evidence that he made this prohibition known to Ms. Ojanen. It is not obvious that a firm would establish such a broad prohibition. [94] Two questions arise. First, did Ms. Ojanen participate in creating the Blog? If so, did she enter into competition with Mr. Doroshenko and Acumen through the Blog? [95] It is clear that Mr. Dominato was

involved in creating the Blog. The payment to an Internet service provider to host the Blog was made on Mr. Dominato's credit card, and he corresponded with the provider. [96] Ms. Ojanen denies that she was involved in creating the Blog. She maintains that Mr. Dominato created the Blog, including driving law postings he had written based on materials she had at home. She acknowledges that these were materials belonging to Acumen and its clients. She says that Mr. Dominato did not have her permission to access these materials. Ms. Ojanen says that she only became aware that Mr. Dominato had created the Blog as a gift for her around the time it was put up in early September 2016. She says she told him to take it down, but he said that he wanted to maintain it. [97] Mr. Dominato was an articled student working at a corporate commercial law firm. In his work, he had nothing to do with driving law. [98] On learning of the Blog, Mr. Doroshenko took steps to investigate it. An inquiry made in the name of a friend, Mr. Seal, generated an unsigned response from Mr. Dominato's email account to Mr. Seal on September 13. A follow-up inquiry generated a second response to Mr. Seal on September 14 from Mr. Dominato's email account sheds light on Ms. Ojanen's involvement with the Blog and her motives. It stated: If you are comfortably within the 7 day period I would recommend contacting a law

firm, they [may] be able to handle the whole process for you. The review process is a paper-based (or over the phone) process and everything is done in Vancouver Island, so you do not need a local lawyer. Acumen law does the most work in this area and I would recommend them. I am not aware of Kamloops lawyers. Whoever you choose, make sure they have experience in arguing driving prohibitions. I do work for Acumen Law as a law student. But whatever you choose, I do recommend hiring a lawyer to deal with your son's situation. My name is Melissa (this is my husband's email). I hope this has been helpful. Best, Melissa [Emphasis added.] [99] Ms. Ojanen maintains that the response of September 14 was sent by Mr. Dominato in her name and without her knowledge at the time. I reject Ms. Ojanen's evidence that she had nothing to do with the September 14 email. Whatever her involvement in the initial creation and establishment of the Blog, it is simply not plausible that Mr. Dominato impersonated Ms. Ojanen in the email of September 14. There was no sensible reason for him to do that. [100] At some point in this period, a page was added to the Blog website identifying Ms. Ojanen as an articled student in Vancouver who was the creator of the Blog. The page was taken down the following day. Ms. Ojanen says that the page was put up by Mr. Dominato. As soon as she found out about it, she

asked him to take it down and he did. [101] While it is possible that the Blog was Mr. Dominato's project at first, I reject Ms. Ojanen's testimony that she had nothing to do with it from the time it was put up, and that Mr. Dominato refused her request that he take it down. It is simply too implausible, especially in light of my conclusion that Ms. Ojanen wrote the email of September 14. I find that Ms. Ojanen participated in the Blog from the time it was posted on the Internet. This is consistent with Ms. Ojanen's pleading, in paragraph 24(a) of the response to civil claim filed by Mr. Le Dressay on behalf of Ms. Ojanen and Mr. Dominato, that "the defendants" created a blog. [102] I turn to the second question: whether Ms. Ojanen entered into competition with Mr. Doroshenko and Acumen through the Blog. I conclude that she did not. The Blog does not offer legal advice. It provides information concerning roadside prohibitions that is equivalent to that offered by Acumen and Ms. Lee in their blogs, without charge, to the world at large. Their calculation must be that readers made aware of the outlines of the law and regulatory framework surrounding driving prohibitions are more likely to seek legal advice from Acumen. To the same end, the Blog advises readers to seriously consider hiring a "proficient" or "qualified" lawyer. [103] The blogs maintained by Acumen and Ms. Lee

direct interested readers to Acumen for legal advice, and the Blog did not. However, the Blog invited comments or questions and the thrust of Ms. Ojanen's email of September 14 to Mr. Seal was an attempt to direct work to Acumen. This was not the act of someone who is setting herself up in competition with Acumen. I infer that Ms. Ojanen would have done the same in response to further inquiries, at least so long as she remained an employee of Acumen. [104] It would have been open to Mr. Doroshenko to conclude that the Blog was ineffective marketing that risked distracting potential clients who would otherwise find their way to Acumen through its blogs or Ms. Lee's blog. While Ms. Ojanen remained Acumen's employee, Acumen was within its rights to intervene to control internet activities that might impair the firm's brand development. Absent a clear direction made known to Ms. Ojanen, however, creating and maintaining the Blog was not misconduct warranting immediate termination. Did Ms. Ojanen permit Mr. Dominato access to privileged materials of Acumen's clients and confidential materials belonging to Acumen and fail to notify Mr. Doroshenko of the breach of privilege? [105] Ms. Ojanen admits that Mr. Dominato obtained access to materials belonging to Acumen and its clients in creating the Blog. She concedes that she did not notify Mr. Doroshenko of the breach of privilege when

she learned of it. [106] The breach of privilege occurred when Mr. Dominato scanned an Acumen client file to his Gmail account. There is no evidence of any use made of the scanned material by Mr. Dominato or Ms. Ojanen. It is clear that it included correspondence with the client that Mr. Dominato should not have seen. The file seems to have involved a driving prohibition. Beyond that, the subject matter of the correspondence is unknown. It might have been intensely private. It might have been relatively trivial. [107] In final argument, Mr. Harding emphasized Ms. Ojanen's failure to notify Mr. Doroshenko of the breach of privilege. He analogized this case to Houlihan v. McEvoy, 2002 BCSC 16, aff'd 2003 BCCA 228, in which the business manager of a student society learned that cash receipts had gone missing and other employees were possibly implicated. The business manager made a calculated decision to keep silent about potential dishonesty to protect her co-workers. She had been warned about the importance of reporting missing money. Madam Justice Martinson held that the business manager's decision to keep silent misled her employer and breached the faith inherent in the work relationship. Applying McKinley, it constituted just cause for termination. [108] In Smith v. Pacific Coast Terminals Co. Ltd., 2016 BCSC 1876, aff'd 2017 BCCA 197, at paras. 221-224, Sigurdson J. ventured

a helpful categorization of wrongful dismissal cases. The first category involves such serious misconduct as fraud or theft. The second involves deceit or misleading of the employer. The first and second categories generally lead to a finding of just cause. A third category involves errors of judgment or a failure to follow rules. The third category often leads to a finding that the misconduct fell short of constituting just cause. Houlihan fell into the second category, because Martinson J. found that the business manager misled her employer. [109] Was Ms. Ojanen's failure to notify Mr. Doroshenko of the breach of privilege a deception of her employer and an act of dishonesty going to the root of the employment relationship, or was it an error of judgment and a failure to follow rules? [110] The Articling Agreement expressly required Ms. Ojanen to strictly safeguard privileged and confidential information of Acumen's clients. The Law Society's Code of Professional Conduct imposes on lawyers and articled students an obligation to "hold in strict confidence all information concerning the business and affairs of a client acquired in the course of the professional relationship" (ss. 3-3.1) and to report to an opposing party its inadvertent disclosure of confidential materials (ss. 7.2-10). Arguably, Ms. Ojanen could be subject to disciplinary proceedings by the Law Society for her

failure to maintain the confidentiality of a client file and, on learning that Mr. Dominato had accessed the file, report the breach to Mr. Doroshenko, in order that he could deal with it. [111] In the context of professional discipline proceedings, Law Society hearing panels have generally addressed the disclosure of client confidences by fines; Law Society of British Columbia v. Bjurman, 2009 LSBC 05 at paras. 8-13. They have not equated this misconduct to dishonest conduct requiring a suspension or disbarment. [112] Ms. Ojanen was just beginning her career as a legal professional. She was under instruction as to her professional obligations. I am not persuaded that her failure to report Mr. Dominato's access to a client file was an act of dishonesty going to the root of the employment relationship. Rather, it manifested a failure on Ms. Ojanen's part to appreciate the extent and implications of the onerous obligations placed upon lawyers and articled students in possession of client confidences. Ms. Ojanen was guilty of a serious error in judgment, but not a fundamental breach of her obligations as Mr. Doroshenko's articled student and Acumen's employee. Cumulative effect of the allegations of misconduct [113] Viewed individually, none of the complaints concerning Ms. Ojanen's conduct constitute just cause. Viewing the complaints collectively and cumulatively, I come to the

same conclusion. The most serious and last of the complaints involves Mr. Dominato's access to confidential materials of Acumen and one of its clients. This matter was unknown to Mr. Doroshenko and Acumen when they terminated Ms. Ojanen's articles and her employment. It is wholly unrelated to Ms. Ojanen's prior conduct in relation to the staff party on August 5, 2016 and its aftermath that was condoned. 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 by McKinley, I am not persuaded that there was dishonesty or equivalent conduct giving rise to a breakdown of the employment relationship. Conclusion concerning Ms. Ojanen's claim for wrongful dismissal [114] Accordingly, I conclude that Acumen did not have just cause to fire Ms. Ojanen, and Mr. Doroshenko did not have just cause to terminate the Articling Agreement. Ms. Ojanen was wrongfully dismissed and her articles were wrongfully terminated. C) What are Ms. Ojanen's damages? [115] An action for wrongful dismissal seeks compensation for a breach of contract. Ordinary principles of damage assessment in contract apply, with an overlay in some cases that reflects the particular nature of the employment relationship as one in which the employee is vulnerable and both sides are required to deal with one another in

good faith. Ordinary principles of damage assessment focus on the financial consequences of the breach for the injured party. The overlay ("aggravated" or "moral" damages) focuses on the manner of the dismissal and its personal effect on the employee. Ordinary damages [116] As with any other victim of a breach of contract, Ms. Ojanen is entitled to be put in the position, so far as money can accomplish it, that she would have been in had she not been dismissed; Wertheim v. Chicoutimi Pulp Co., [1911] A.C. 301 at para.

7. This principle is subject to two limitations. First, the loss claimed must be within the reasonable contemplation of the parties at the time the contract was entered into; this is the rule in Hadley v. Baxendale (1854), 156 E.R.

145. Second, the plaintiff may not claim losses that she could have mitigated or avoided by taking reasonable steps in her own interest. [117] Ms. Ojanen's weekly pay included an allowance for vacation pay. I assume that she would have taken two weeks of vacation during her articles. Accordingly, under the Employment Agreement, Ms. Ojanen was entitled to be paid for 50 weeks: 40 weeks at $687 per week (recalling that the $687 amount includes vacation pay), and 10 weeks at 50% of that. She could reasonably expect to earn $30,915 over the course of the year. Her final pay statement shows that Acumen paid her $11,981. The difference is $18,934. [118] Assuming successful completion of the PLTC, Ms. Ojanen would also have been qualified for admission to the bar as a lawyer. In fact, Ms. Ojanen failed to pass the exams required as part of the PLTC. She blames this on trauma and upset from the manner in which she was terminated. I think it is likely that she would have done much better if she had not been served in front of her classmates and accused of "deceitful conduct and dishonesty" in the termination letter, and had not been distracted by the need to instruct counsel and defend the action brought against her by Acumen and Mr. Doroshenko. However, there is no evidence that would enable me to value the potential increase in Ms. Ojanen's income-earning capacity as a lawyer. I

decline to award her damages based on the loss of an opportunity to become a lawyer at the end of the articling period. Such an award would be speculative. [119] Acumen submits that Ms. Ojanen failed to mitigate her loss by obtaining alternative articles. I am not persuaded by this submission. It is unrealistic. Mr. Doroshenko had reported to the Law Society that Ms. Ojanen had engaged in dishonest and deceitful conduct. There was a lawsuit against her in which Acumen and Mr. Doroshenko were advancing the allegations I have canvassed. Ms. Ojanen was justified in thinking that she had no reasonable prospect of employment in the legal profession in Canada while these allegations were being pursued against her. [120] I conclude that Ms. Ojanen is entitled to ordinary damages of $18,934. Acumen was the employer and these damages are payable by Acumen. [121] Mr. Doroshenko breached the Articling Agreement by terminating it without just cause. There is no evidence that Ms. Ojanen suffered a financial loss from the termination of the Articling Agreement that is independent of the loss she incurred from the loss of her employment. She is entitled to judgment against Mr. Doroshenko for nominal damages of $10. Aggravated or moral damages [122] Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701 established that employers owe their employees obligations of good faith and fair

dealing. This obligation stems from the power imbalance inherent in the relationship of employer and employee and the importance of employment as a component of the employee's sense of identity, self-worth and emotional well-being (at para. 93). Speaking for the majority at para. 98, Iacobucci J. held that "in the course of dismissal employers ought to be candid, reasonable, honest and forthright with their employees and should refrain from engaging in conduct that is unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive". [123] In Wallace, the court addressed a breach of the employer's obligation of good faith in termination that caused the plaintiff distress by extending the period of reasonable notice to which the plaintiff was entitled. Honda Canada Inc. v. Keays, 2008 SCC 39 qualified Wallace. The Court explained that bad faith conduct warranting more than ordinary damages requires an impact on the plaintiff that is greater than the normal distress and hurt feelings resulting from dismissal. Where such an award is justified, it should take the form of a distinct award of aggravated or moral damages. [124] David Harris, Wrongful Dismissal (looseleaf) (Toronto, Thomson Reuters: 2017), at 4-250.51 states that Wallace and Honda Canada establish the following two-part principle: (1) dismissals actuated by, or attended with, conduct by

employers which is unfair or undertaken in bad faith, may give rise to aggravated damages, provided that, (2) the plaintiff demonstrably suffers emotional or health consequences thereby which exceed an objective norm for dismissed employees, generally. [125] I accept Harris' two-part statement of principle as setting out the questions I must address. [126] Addressing the first question, the employer's dealings with the employee after the dismissal, including its conduct in litigating the employee's claim, may be considered as an element in the court's consideration of the manner of dismissal; Galea v. Wal-Mart Canada Corp., 2017 ONSC 245 at paras. 254 - 256; OWL (Orphan Wildlife) Rehabilitation Society v. Day, 2018 BCSC 1724 at para. 286. [127] Addressing the second question, medical evidence is not required to establish that the employee has suffered emotional or health consequences but there must be some evidence of serious and prolonged disruption that transcends ordinary upset or distress; Lau v. Royal Bank of Canada, 2017 BCCA 253 at para. 49. (1) Was the conduct of Acumen and Mr. Doroshenko unfair or undertaken in bad faith? [128] The following conduct of Acumen and Mr. Doroshenko stands out as unfair and unduly insensitive: a) Mr. 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. [131] Ms. Ojanen says that Mr. Doroshenko harassed and intimidated her while she was employed at Acumen. In her evidence, she described inappropriate interactions with Mr. Doroshenko and remarks by him. In his evidence, Mr. Doroshenko denied these allegations. I am unable to resolve this conflict in the evidence and come to a conclusion as to whether Ms. Ojanen's allegations of intimidation and harassment are made out. I place no weight on these allegations in concluding that Acumen and Mr. Doroshenko were unfair and acted in bad faith in

the manner in which they dismissed Ms. Ojanen. (2) Did Ms. Ojanen suffer emotional or health consequences which exceeded a norm for dismissed employees? [132] Ms. Ojanen testified that her dismissal and this lawsuit have visited profound emotional consequences upon her. She was shocked and humiliated when she was served in front of her class. After that, everything changed at PLTC and she felt embarrassed just being there. She was distracted by the lawsuit and unable to focus on her studies. As I have noted, she did not successfully complete PLTC. [133] Ms. Ojanen blames the dismissal and the lawsuit for the break-up of her marriage to Mr. Dominato. She feels herself an outcast from the legal profession and unqualified for other employment. In applying for work, she has had to disclose the allegations of theft and trespass. As she put it, it's a lot for an employer to take on. Since her termination, she has mostly been unemployed. She could not afford her rent and lived out of a car for three months. The car belonged to Mr. Dominato and he repossessed it and moved back to Ontario. Ms. Ojanen lived on the street for a week or so after that before she was able to persuade her parents to take her in; she now lives in an apartment they own. Pending the resolution of this lawsuit, her life has been on hold. [134] Ms. Ojanen testified that her experience with Acumen has changed who

she is. She suffers from anxiety, depression, inability to focus, irritability and loss of appetite. These were not issues for her before her termination. [135] During the course of the trial, Ms. Ojanen was frequently emotional. She had to be persuaded not to leave the courtroom while Mr. Doroshenko was testifying. Notwithstanding her emotional fragility and lack of experience with the rules of evidence and court processes, she was able to articulate her position and cross-examine opposing witnesses effectively. [136] I accept Ms. Ojanen's evidence concerning the effects of the dismissal and this lawsuit on her. In the circumstances in which Ms. Ojanen found herself, it was natural for her to suffer serious and prolonged emotional distress in consequence of the way she was treated by Mr. Doroshenko and Acumen. I find that she suffered serious and prolonged emotional distress that is well outside the norm for dismissed employees. Conclusion concerning aggravated damages [137] Accordingly, I find that Ms. Ojanen is entitled to a substantial award of aggravated damages. 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. I award her $50,000, payable by Acumen. Disposition [138] For these reasons: a) The action brought by Acumen and Mr.

Doroshenko against Ms. Ojanen is dismissed; b) The action brought by Ms. Ojanen against Acumen is allowed and Acumen will pay Ms. Ojanen ordinary damages of $18,934 and aggravated damages of $50,000; c) The action brought by Ms. Ojanen against Mr. Doroshenko is allowed and Mr. Doroshenko will pay Ms. Ojanen nominal damages of $10. [139] If there are matters that must be brought to my attention concerning costs, the parties may arrange a hearing before me in chambers to address them. If a hearing is not requested within 14 days of the release of these reasons, Ms. Ojanen will recover ordinary costs of both actions. "Gomery J." The Honourable Mr. Justice Gomery