Ojanen v. Acumen: Red Lights in the Dismissal Process

Written By: Michael J. Geib, Associate


A decision was recently released by the British Columbia Court of Appeal regarding a noteworthy employment law dispute. While the Court’s decision in Ojanen v. Acumen Law Corporation, 2021 BCCA 189 does not create any new law, the unique underlying facts on appeal, and the Court’s related holding, provides a great vehicle to assess multiple key employment law issues including:

  • aggravated vs. punitive damages in the context of employment contracts;
  • discussion about just cause in a factually nuanced employment relationship; and
  • the quantification of aggravated and punitive damages stemming from instances of egregious conduct in the manner of dismissal.

I invite you to read the rest of this case commentary. As a general reminder, this article is provided for informational purposes only. As such, nothing conveyed in this article constitutes legal advice.

Brief Summary:

The appellant/respondent on cross appeal (Acumen Law Corporation (“Acumen”)) is a law firm in British Columbia and a significant aspect of its scope of practice relates to “driving law” which includes representing people in administrative and criminal proceedings related to driving offences. The respondent/appellant on cross appeal Melissa Ojanen, a.k.a. Melissa Dominato (“Ms. Ojanen”) was an articling student at Acumen, under her articling principal, Paul Doroshenko (“Mr. Doroshenko”), who was also a named party in this matter.

A breakdown in the employer/employee and principal/student relationships occurred that precipitated the end of Ms. Ojanen’s employment and articling term with Acumen. Additionally, a claim was commenced against Ms. Ojanen for breach of contract, theft, trespass, and wrongful use of materials; Ms. Ojanen sued for wrongful dismissal. At trial, Acumen’s lawsuit against Ms. Ojanen was dismissed while it was determined that Acumen’s dismissal of Ms. Ojanen was without cause, and the manner of dismissal was inappropriate and worthy of aggravated damages.

The appellants appealed arguing the trial judge’s findings with respect to wrongful dismissal were incorrect at law while Ms. Ojanen appealed the trial judge’s decision not to consider the issue of punitive damages; she also sought an increased general damages award.

The Court dismissed Acumen/Mr. Doroshenko’s appeals and allowed Ms. Ojanen’s cross appeal, increasing her award for general damages, along with awarding both aggravated and punitive damages.

Key Facts:

  • Acumen hired Ms. Ojanen as an articled student, with her articles commencing in May 2016;
  • while Acumen was the employer, Mr. Doroshenko was the articling Principal [therefore, the employment contract ran between Acumen and Ms. Ojanen while the Principal/Student agreement ran between Mr. Doroshenko and Ms. Ojanen];
  • on August 2, 2016 Mr. Doroshenko sent Ms. Ojanen and another student at the firm a message indicating he hoped to keep them on after articling;
  • on August 5 Ms. Ojanen attended an after-work function where she subsequently admitted to over drinking and complaining about her salary to a colleague;
  • consequently, she was suspended for approximately one week in which time she did not have access to the office, she was reinstated after apologizing;
  • Ojanen solicited a performance review shortly before she was to attend a professional certification course (“PLTC”) starting on September 12, 2016, and the trial judge found the review she received was generally favorable;
  • in early September 2016 Mr. Doroshenko became aware of an online blog which offered information to persons facing driving prohibitions [relating to one of Acumen’s key practice areas];
  • further, the information in the online blog was similar to information posted on Acumen’s blogs and other electronic mediums, which Mr. Doroshenko considered to be material to Acumen’s marketing;
  • the discovery of this blog led Mr. Doroshenko to investigate which led him to conclude Ms. Ojanen and her then husband were behind the blog [at trial Ms. Ojanen said that her then husband created the blog based on materials Ms. Ojanen brought home but she was originally unaware of the blog when it was posted];
  • Doroshenko saw Ms. Ojanen at the Acumen office during the evening of September 14 where he found Ms. Ojanen returning some client file materials that she did not have permission to take home;
  • on September 16 Acumen terminated the employment agreement; Mr. Doroshenko terminated Ms. Ojanen’s articles, and the appellants commenced a claim against Ms. Ojanen;
  • Doroshenko had the process sever serve the claim against Ms. Ojanen in front of her PLTC classmates, which also included a letter to Ms. Ojanen signed by Mr. Doroshenko advising of the termination of her employment and articles on the basis of “…violating the Articling Agreement, deceitful conduct, and dishonesty.”



At trial, the judge held that the articles posted on the blog were similar to those posted on Acumen’s resources, but not identical, and he found the blog did not infringe copyright or disclose private information. The trial judge further concluded that none of Ms. Ojanen’s conduct, either on its own or cumulatively, constituted conduct that would rise to the level of just cause for dismissal. It was held that the conduct at issue was not the kind of dishonesty or equivalent conduct that would give rise to a breakdown of the employment relationship.

On Appeal the appellants advanced an interesting argument, in part based on the uniqueness of the articling relationship. Essentially, they argued because there is a unique degree of trust between the student and the principal that context must be considered in a just cause analysis. The appellants argued that the conduct of Ms. Ojanen was so egregious it materially affected the relationship between her and Mr. Doroshenko such that the employment relationship could not continue.

The Court held that the appellant’s argument mixed the employment agreement and the articling agreement together. The Court held that the principal-articled student relationship does not require separate or unique employment law principles. The Court found no error in the trial judge’s application of common law principles on the facts before him and dismissed the appeal.

In regards to the cross-appeal the Court found that the trial judge erred in his consideration of the general damages award. Ms. Ojanen argued at trial that she ought to be compensated for loss of opportunity relating to the delay in becoming a lawyer caused by the lawsuit and Mr. Doroshenko’s related complaint to the Law Society. Mr. Justice Goepel, writing for the Court, held:

“[t]he law has long recognized that the fact damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages for breach of contract” [at para 62].

That comment was made in relation to trial judge having dismissed Ms. Ojanen’s claim for damages for lost opportunity on the grounds it would be speculative because there was insufficient evidence to assess what her new income would have been once she was called to the bar. Looking at Ms. Ojanen’s income while articling and then looking at what she may have earned once she was called the Court held that Ms. Ojanen established that she was entitled to an award for loss of opportunity and increased general damages by the sum of $100,000.

On the issue of punitive damages the Court held the trial judge erred in not considering this head of damage. The Court reiterated the existing jurisprudence provided by the Supreme Court of Canada in Honda Inc. v. Keays, 2008 SCC 39 [“Keays”], clarifying that aggravated damages and punitive damages are different heads of damage potentially available in the context of wrongful dismissal. The Keays decision makes it clear aggravated damages relating to conduct in the manner of dismissal are compensatory whereas punitive damages are restricted to malicious and outrageous acts that deserve punishment on their own.

Looking at the various factors that should be assessed when determining whether to make an award for punitive damages the Court held that these facts satisfied an award for punitive damages because the appellants’ conduct was high-handed, malicious and a marked departure from the decent behavior in the context.

The Court reiterated the trial judge’s findings that the conduct was unfair and unduly insensitive because, in part: the decision to fire Ms. Ojanen was made without considering of why she was involved in the blog; serving her in front of her classmates was “unnecessary and psychologically brutal” and was “a deliberate public firing”; the accusations of deceit and dishonesty were unwarranted; the likely result of the termination, lawsuit, and report to the Law Society was to reduce Ms. Ojanen’s employability in her chosen profession until the allegations were resolved; and there was a significant power imbalance caused by the uniqueness of the principal/student relationship that was not respected.

The Court increased the general damages award and awarded punitive damages, along with a nominal award against Mr. Doroshenko for breach of the articling agreement. In total, Ms. Ojanen received:

  • $118,934 from Acumen for general damages and $50,000 for aggravated damages;
  • $10.00 against Mr. Doroshenko for breach of the articling agreement; and
  • $25,000.00 in punitive damages jointly and severally against Acumen and Mr. Doroshenko, along with costs of the appeal and cross appeal.

Writer’s Comments:

While this decision does not create new law I think that it is interesting and worth consideration for several reasons as discussed below:

For Employers:

  1. Example of lack of just cause

This decision along with the related trial decision adds further context to the line between just cause and lack thereof. The trial judge held, and the Court did not disturb the finding, that the employer did not sufficiently investigate the motivation for Ms. Ojanen’s involvement with the blog. It could be argued that the failure to sufficiently make this inquiry impacted how the employer objectively ought to have viewed the status of the relationship. In other words, if it was determined that Ms. Ojanen was running this blog to steer business away from Acumen that would likely lead to a different understanding about the viability of the ongoing relationship. However, the evidence before the Court was that Acumen did not make an inquiry about her motivation and all she was doing was publishing material similar to, but not exactly the same as, material published by Acumen. Additionally, it was found at trial that the blog contained a contact email and the party answering the email mentioned Acumen as a possible firm to handle the matter.

Looking at non-blog related behavior complaints it was held at trial, and then affirmed on appeal, that none of Ms. Ojanen’s acts or behavior on their own rose to the level of breaking down the relationship to the point it was untenable. Ms. Ojanen admitted to taking materials home without permission and complaining about some aspects of her employment and colleagues while intoxicated at a post-work function. In the eyes of the Court these acts along with some other minor conduct were not enough to constitute just cause.

  1. Manner of termination

Perhaps the most important employer takeaway from this decision is the further clarification of the following proposition: one can terminate the employer/employee relationship, but one cannot do so in a manner that is designed to exact vengeance or to punish the outgoing employee. In other words, while an employer can terminate someone, even where one subjectively feels wronged by the employee, the termination is the remedy for the employer; the employer does not get to terminate the employee in a manner that is high handed or malicious. Therefore, where one attempts to affect a dismissal in a manner that is somehow a significant departure from what a reasonable employer would do in the circumstances there is a real risk of attracting aggravated and/or punitive damages.

While none of this is new law the facts relating to the manner of dismissal were particularly egregious in this case and help colour a proper understanding of what rises to the level of being high handed, malicious, and a marked departure from decent behavior in the context:

  1. in this case, the articling Principal [in a position of considerable power] terminated the relationship in writing without fully investigating or assessing the student’s conduct.
  2. the public or semi-private firing and service of the lawsuit was particularly brutal. The termination was delivered in an inappropriate environment; instead of serving the termination on Ms. Ojanen in person or at her home she was served in the proximity of her classmates.
  3. instead of simply terminating the relationship, the subsequent lawsuit and complaint to the Law Society made it difficult if not impossible for Ms. Ojanen to secure new articles and to get called to the bar. The Court found that this was harsh and caused significant distress to Ms. Ojanen.

In my opinion, the lesson for employers is this: even in cases where you feel or believe an employee is creating a legitimate risk to your competitive position, or is misusing your intellectual property, the need for a complete investigation is not diminished. Further, even where an employer has the requisite legal knowledge or expertise to assess the situation there is real value in having an objective legal opinion provided, whether it is through in house counsel or through external counsel. As is often the case an objective non-partisan assessment of a fact situation will often illuminate the pitfalls of a reactionary or emotion based position. Finally, regardless of what an employee does, whether the cause is justified or unjustified, the manner of dismissal must always be done in a manner that is reasonable, fair, and appropriate.

For Employees

Employers and employees each have a unique suite of rights and obligations towards each other. Even where a form of conduct on the employee’s part may be strictly permissible under the employment agreement or at common law there may be some cases where open communication between the parties can prevent misunderstandings that can quickly deteriorate situation and ruin the relationship.

Additionally, there are certain employment contexts where there may be express or implied obligations regarding off work activities. Where one has a written employment agreement is worth reviewing all of the terms to see if there are any clauses or terms dealing with off work activities. This decision provides a really good example – an employee’s intellectual property published off hours that happens to relate to their area of employment/their employer’s intellectual property. Other examples include athletes being prohibited from engaging in certain physical activities while in season for insurance purposes, and clauses or terms that may impact an employee’s ability to publicly share their opinions about their organization.

This decision also highlights that when an employee is terminated, whether it be with or without just cause, the departing employee has a right to be terminated in a way that is fair and reasonable. Exactly what that means can be context dependent but the facts relating to this decision depict two issues in dismissal that adversely impact the employee: a public or semi-public dismissal, and a course of conduct that arbitrarily makes the employee’s pursuit of subsequent employment more difficult.

For Employment Lawyers

I think this decision could be valuable for juniors or for law students hoping to get a more recent contextualization of the principles elucidated in Keays relating to aggravated and punitive damages.

Further, regarding the just cause analysis, the decision maintains that even in cases of unique employment relationships the general principles still apply. While there was an interesting attempt to argue the unique nature of the relationship warranted a more nuanced analysis the Court held the issue of just cause is still assessed on the basis of common law principles. Therefore, unless there is a unique mechanism to determine cause prescribed in an employment agreement, this decision further supports the traditional principles for determining cause, and it is unlikely that a unique relationship will be grounds for departing from that analysis.

In respect of aggravated and punitive damages analyses I would argue while the facts are noteworthy the decision really highlights (expressly or impliedly) three common hallmarks to be aware of: public/semi-public dismissal, dismissal that arbitrarily adversely impacts employment prospects, and bad faith. Where one or more of the aforementioned elements arises on the facts there is significant risk of exposure for aggravated and possibly punitive damages which should be addressed in evaluating settlement options and advice.

For those advising employers the facts of this case help further demonstrate the need for appropriate and balanced termination processes both in the investigation of employee conduct and in the actual manner of dismissal. An employer’s incomplete Bardal assessment may impact a final settlement package or lead to a slightly higher damages award at trial, but when there are issues with manner of dismissal there is exposure for significant damages awards and of course the public consternation against the offending employer when things for to trial.


Disclaimer: This article is to be used for educational and non-commercial purposes only. Parlee McLaws LLP does not intend for this article to be a source of legal advice. Please seek the advice of a lawyer before choosing to act on any of the information contained in this article.