One of Vancouver’s more prominent lawyers, Paul Doroshenko, was reprimanded for “bullying” in an August 13 B.C. Supreme Court judgment that found his three-office Acumen Law Corp. liable for $68,934 in damages for wrongfully dismissing an articling student in 2016.
Doroshenko, who is frequently sourced in media stories and appears regularly on radio and TV, was found to have treated articling student Melissa Ojanen (also known as Melissa Dominato) so badly that Justice Geoffrey Gomery ruled that his firm must pay Ojanen $50,000 in aggravated damages in addition to $18,934 in ordinary damages.
“[Ojanen] is the victim of unfair, bullying [and] bad faith conduct by her former employer and her former principal and has suffered substantial and prolonged emotional distress because of that conduct,” Gomery wrote in his judgment.
He documented how Acumen fired Ojanen in an “unnecessary and psychologically brutal” way by having her served with a termination letter at the Professional Legal Training Course (PLTC] that was part of her one-year articling-student contract with Acumen.
“Doroshenko suggested that he made the decision to serve Ms. Ojanen at PLTC because the server could not locate her at home,” Gomery wrote. “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.”
Fallout from that firing was that Ojanen failed to perform well on her PLTC exam and was not able to find another firm to hire her to complete her articling.
This left her mostly unemployed and unable to afford rent, leading to a downward spiral where she lived out of a car for three months. She even had to live on the street for one week before she was able to persuade her parents to take her in. She now lives in an apartment they own, Gomery wrote.
Ojanen started working at Acumen Law on May 24, 2016, when she was a newlywed to law school classmate Nicholas Dominato. The two are separated with a divorce is pending and Ojanen blames the firing and lawsuit for her marital meltdown, according to the judgment.
Some of the reasons that Acumen provided to justify firing Ojanen on September 16, 2016 include:
•she entered Acumen’s premises after hours without permission;
•she stole documents;
•she engaged in disloyal and trouble-making activity at a party and restaurant dinner;
•she entered into competition with Doroshenko and Acumen by creating a blog;
•she failed to immediately notify Doroshenko when her husband scanned an Acumen document that Ojanen had taken home; and
•she was insubordinate.
Acumen then sued Ojanen for theft. Ojanen countersued for wrongful dismissal.
Gomery methodically went through each of those claims and explained how there was either no evidence to support the alleged wrongdoing or that the breach was not severe enough to merit firing Ojanen.
Other articling students worked late and took work home, for example. So it was unfair to target Ojanen for being in the office after hours and for taking work home, Gomery said.
“It is notorious within the legal profession that lawyers and articling students sometimes work very long hours,” he wrote.
The alleged stolen documents caused Acumen no financial loss, he added. Those documents were alleged to be few files that Ojanen said she did not have. After she was fired, she had her lawyer deliver a couple boxes filled with files that she had been working on at home.
“She had no sensible reason to hold back selected materials, and I find that she did not,” Gomery wrote.
Her alleged trouble-making at a party and dinner was that she got drunk and seemed to imply to others that she was not happy with how low her salary was – $30,915 for the year.
She also suggested to people at Acumen that another articling student was trying to steal her husband.
“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,” Gomery wrote.
Her alleged insubordination came after reports of her behaviour at the party came to Doroshenko’s attention. He had a curt meeting with her and said he was concerned about her being disloyal to the firm. He did not allow her to explain her side of what happened. Instead, he suspended her, took her office key and told her to leave the office right away. She was then to return on a future day to discuss her future, according to the judgment.
Ojanen, instead of immediately leaving the office, went to try to talk to senior associate Kyla Lee. Gomery found that this failure to leave immediately did not amount to insubordination.
The contentious blog about driving law, which is Acumen Law’s specialty, was one thing that appeared to particularly aggravate Doroshenko, Gomery wrote.
Doroshenko and Lee are both active in social media and they have blogs. Doroshenko testified that it was his policy not to permit associates of his firm “to establish any web presence of their own without his permission and control over its contents,” Gomery wrote.
“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.”
To determine who was behind the newly discovered driving-law blog, Doroshenko created a false identity and emailed the blog for advice. Responding emails showed an email account that was identified as belonging to Ojanen’s husband, Gomery wrote.
One email response suggested that the person making the inquiry should consider going to Acumen Law – a fact that prompted Gomery to say that Doroshenko “jumped to a conclusion that she was setting herself up in competition with Acumen [when] 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.”
Acumen’s allegation that Ojanen failed to immediately notify Doroshenko when her husband scanned an Acumen document that Ojanen had taken home was true, according to the judgment.
Gomery suggested that Ojanen could be subject to disciplinary proceedings by the Law Society of British Columbia for her failure to maintain the confidentiality of a client file. When she learned that her husband had accessed the file, she did not immediately report the breach to Doroshenko so he could deal with it.
“In the context of professional discipline proceedings, Law Society [of British Columbia] hearing panels have generally addressed the disclosure of client confidences by fines,” Gomery wrote. “They have not equated this misconduct to dishonest conduct requiring a suspension or disbarment.”
Gomery suggested that 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," he wrote. "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."
Finally, one egregious thing that Doroshenko did during his testimony, according to Gomery, was that he “invoked a sexist stereotype of female incompetence in describing [Ojanen’s performance.] This was a low point in his evidence.”
In addition to the $68,934 that Acumen is liable for, because it had an employment contract with Ojanen, Doroshenko is liable for an additional $10 because he separately had an articling contract with her. Gomery found that the articling contract largely overlapped with the employment contract but that because the articling contract did not stipulate wages, the financial penalty would go to Acumen as the employer.
To read the full judgment, click here.