The Supreme Court of British Columbia’s recent decision in Acumen Law Corporation v. Ojanen highlights that even lawyers can benefit from speaking to employment lawyers before terminating an employee.
Acumen Law is a Vancouver law firm that specializes in defending individuals charged with criminal offences while driving. The Plaintiff, Ms. Ojanen began working as an articling student for Acumen Law in May 2016. In September 2016, Ms. Ojanen left Acumen Law to attend PLTC, the bar exam prep class that all articling students in British Columbia are required to take.
Shortly after Ms. Ojanen began PLTC, the founder and principal of Acumen Law, Paul Doroshenko, learned of the existence of a blog entitled “BC Driving Prohibitions Blog”. The blog provided information (not legal advice) for individuals charged with driving offences. Mr. Doroshenko believed that the blog was attempting to compete with his firm and became suspicious that Ms. Ojanen was the blog’s author. Days later, without having spoken to Ms. Ojanen, Mr. Doroshenko made the decision to terminate her articles with Acumen.
Along with her termination, Mr. Doroshenko filed a civil claim against Ms. Ojanen for breach of contract, illegally trespassing on Acumen property, and theft and wrongful usage of the firm’s marketing materials. To take it one step further, Mr. Doroshenko served Ms. Ojanen with her termination letter and the notice of civil claim at PLTC in front of other articling students.
As a result of Acumen Law’s actions, Ms. Ojanen was forced to attempt to prepare for the bar exam knowing that she had no job to go back to, having been humiliated in front of her classmates, and while defending herself against the civil claim. Sadly, she did not pass the bar exam and was unable to locate another articling position. This left Ms. Ojanen in dire financial straits and unable to afford the rent on her apartment. Ms. Ojanen subsequently spent a period of time living in a car and on the streets.
Ms. Ojanen counter-sued Acumen Law for wrongful dismissal. In considering Acumen Law’s position that it had just cause to terminate Ms. Ojanen, the Court was particularly critical of the manner in which Mr. Doroshenko conducted his investigation into the blog and his characterization of Ms. Ojanen’s typical workplace conduct as misconduct. For example, Mr. Doroshenko alleged Ms. Ojanen engaged in illegal trespassing when she came into the Acumen offices in the evening to work on files. The Court held, absent being directed otherwise, that this amounted to typical articling student conduct and that Mr. Doroshenko’s argument ignored the fact that he had given Ms. Ojanen keys to the building and the passcode for the office alarm.
Decision – Wrongful Drivemissal
The Court held that Acumen Law did not have just cause to terminate Ms. Ojanen’s fixed-term articling contract. The Court awarded Ms. Ojanen $18,934 in ordinary damages, representing the amount Ms. Ojanen would have earned over the remainder of her articling period. The Court awarded her a further $50,000 in aggravated damages due to the emotional and financial distress flowing from what the Court termed Acumen’s bullying and bad faith conduct, particularly in the manner of her termination.
What’s the Lesson?
This case reminds us that an employer’s conduct in investigating an employee’s alleged misconduct may be scrutinized by a court. When Mr. Doroshenko learned about the blog, he conducted his own investigation, determined that the blog was a threat to Acumen Law, failed to speak to Ms. Ojanen, concluded that she had created the blog and dismissed her for cause. As made clear by the Court, this is a crash course for employers in what not to do in this type of situation.
When conducting an investigation into potential employee misconduct, employers must be thorough and fair and should speak to anyone who may have relevant knowledge of the issue. Employers should also ensure that the subject of any investigation is given a suitable opportunity to respond to any allegations.