Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. Photo: Contributed

Kootnekoff: Wrongful dismissal award against B.C. law firm

A recent case from a Vancouver-based law firm

It happens even to law firms.

An employer who fails to handle a dismissal with great care risks being on the wrong side of a stinging judicial decision.

This recently happened to a Vancouver based law firm which specializes in “driving law.” The law firm had hired an articling student, one of many over the years. For the first few months, things went well enough.

Until the law firm’s founder concluded that the student was behind a driving law blog. It then dismissed the employee, three months into her 12 month articling term.

Then, the law firm and the proprietor sued her for creating the blog, and to return certain materials they alleged had been stolen from the firm. The law firm alleged that she was using stolen files to create the blog to compete with the firm.

The articling student fired back with a wrongful dismissal claim. The law firm responded that it had just cause for her dismissal.

The employer alleged various actions or omissions amounted to just cause for dismissal. The judge found that some were trivial, and others amounted to errors of judgment by the student. However, since the firm did not dismiss her then, it could not constitute just cause after the fact.

The employer argued that the student avoided responsibility and was unfit to practice law. The judge found that these claims were without merit. Further, the principal “invoked a sexist stereotype of female incompetence in describing this alleged practice.”

The court found that although the student had some involvement with the blog, in fact it did not compete with the firm.

The student was awarded approximately $19,000 for the period of reasonable notice. The court went on to consider the employer’s conduct, including its conduct after the dismissal. In finding that the employer behaved badly, the court stated that the following “stood out”:

Dismissing the student without asking her about her involvement with the blog and her intentions underlying it, and instead jumping to conclusions;

Making her dismissal “deliberately public,” by delivering her dismissal package to her in front of other students at the Bar admission course, which the court said was “unnecessary and psychologically brutal”; and

Persisting in making unfounded allegations of deceit and dishonesty, which were harsh, unwarranted, and based on “unfounded suspicions”.

The judge observed the power imbalance at play. The student was a young woman without local contacts in the profession. The principal was “the head of an established law firm. …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” her. In short, his response on discovering the Blog was “disproportionate and bullying.”

The court concluded that the student was the victim of “unfair, bullying,” and “bad faith conduct.” She suffered substantial and prolonged emotional distress because of that conduct. This resulted in an award of an additional $50,00 in aggravated damages. This brought her total award to $68,944.

This law firm might know a thing or two about driving law, but may have benefited from employment law expertise. This law student has some tenacity, and may have a bright future ahead.

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