May 19, 2021

Loss of Opportunity to Qualify and Work in Profession Results in Increased Damages

An articling student successfully appealed her award of damages from her wrongful dismissal action against a Vancouver law firm and was awarded an additional $100,000 for her lost opportunity to become a lawyer, plus $25,000 in punitive damages by the Court of Appeal in Ojanen v Acumen Law Corporation and Paul Doroshenko, 2021 BCCA 189. In total, the plaintiff was awarded $193,934 in damages.

The law firm terminated the plaintiff’s employment and articles after four months and commenced an action against her claiming she stole marketing materials for her own blog. The plaintiff counterclaimed for wrongful dismissal.

At trial, the lower court dismissed the law firm’s claims and found it did not have just cause to terminate the employment agreement or the articling agreement.  The trial judge determined that an award of damages for loss of opportunity was “speculative” and awarded general damages for the amount she would have earned to the end of her articling agreement, $18,934. In addition, the trial judge awarded the plaintiff $50,000 in aggravated damages, and the nominal amount of $10 against Mr. Doroshenko for breach of the articling agreement.

The law firm appealed on the basis that the trial judge erred in deciding the articling student was wrongfully dismissed by not considering the special relationship between principal and student mandated by the rules of the Law Society of BC and in concluding that although the student’s conduct fell short of dishonesty it did not breach the employment relationship or justify termination of her articles. The articling student cross-appealed on the issue of damages.

The Court of Appeal dismissed the law firm’s appeal.  The Court held that the principal/articled student relationship did not require the application of different employment law principles or a unique application of common law employment principles. The Court recognized that the articling agreement ran for a 12 month term and that there was no provision for early termination on reasonable notice.  The plaintiff was thus entitled to have her employment continued for its full term, unless she was guilty of misconduct constituting just cause. The Court of Appeal found that the trial judge properly applied common law employment principles, with full knowledge of the terms of the articling agreement, and determined Acumen did not have just cause to dismiss the articling student.

The Court of Appeal then went on to increase the plaintiff’s general damages award by $100,000 to include an award for the loss of earning capacity as a lawyer.  The Court of Appeal disagreed with the trial judge’s finding that an award of damages for the plaintiff’s loss of opportunity to become a lawyer at the end of her articling period was “speculative”.  The Court of Appeal found that as a result of the articling agreement, the reasonable contemplation of the parties was that the plaintiff’s termination without just cause would include an award for loss of future earnings.  The Court held that, assuming the successful completion of her articles, she would have been qualified for admission to the bar as a lawyer and would have been paid as a lawyer.

The Court noted that the trial judge correctly found that because of the wrongful termination of her employment, together with the allegations made by the law firm against her in the proceeding, the plaintiff had been unable to pursue her career as a lawyer.  It would have been within the reasonable contemplation of the parties when they entered the contract that if the law firm wrongfully terminated her employment, she would lose the opportunity to become a lawyer and lose the opportunity to be paid as such. The Court of Appeal also noted that the trial judge found that the obvious probable consequence of the termination, the law firm’s lawsuit against her, and Mr. Doroshenko’s report to the Law Society about the plaintiff, rendered her unemployable in the legal profession for so long as the allegations against her remained in play – in this case, the trial judge found that her ability to find employment in the legal profession had been delayed for over three years.

The Court of Appeal acknowledged that an award for loss of opportunity is a matter of assessment and it is “impossible to say with certainty what would have happened absent the wrongful dismissal”.  The assessment must consider the “likelihoods of various possibilities, as well as negative and positive contingencies”.  In this case, the Court noted the evidence that less than three months into articles, Mr. Doroshenko indicated he wanted to continue the plaintiff’s employment after articles once she became a lawyer, and that she had received a positive performance appraisal prior to commencing her bar admission course. As a result, the Court awarded her $100,000 for loss of earning capacity.

The Court of Appeal also found that the law firm’s conduct was “high-handed, malicious, arbitrary” and “highly reprehensible”, such that it warranted an award of punitive damages, based on the trial judge’s findings.  Those findings included Mr. Doroshenko’s decision to dismiss the plaintiff without asking her about her alleged misconduct, his decision to serve the legal proceedings commenced against her in front of her classmates, the harsh and unwarranted accusations of deceit and dishonesty, and Mr. Doroshenko’s “disproportionate and bullying” response to the plaintiff. The Court awarded an additional $25,000 as punitive damages.


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