In a recent British Columbia Court of Appeal decision, the court upheld a finding that an articling student had been wrongfully dismissed over the contents of a blog and increased her general damages award to $100,000.
Law School Graduate Hired by Employer Law Firm
The employee was hired as an articling student at the employer’s law firm after she completed law school in 2016. In order to qualify to become a lawyer, law school graduates must complete their “articles”, which is a form of internship, with an accredited lawyer or law firm. In British Columbia, articling students must complete an articling period of 12 months, only interrupted by a ten-week Professional Legal Training Course (“PLTC”).
The employee commenced her articling with the employer on May 24, 2016. The law firm specialized in “driving law,” which included defending criminal and regulatory offences while driving, reviewing driving prohibitions, conducting judicial review applications arising from decisions of the superintendent of motor vehicles, and defending traffic tickets.
On August 2, 2016, the founding lawyer of the law firm texted the employee and a fellow articled student, advising them of his desire to employ them both following completion of their articles.
Employee Fired Over Blog Posts
However, soon after, the founding lawyer found a website called “B.C. Driving Prohibitions Blog”, that had been started in 2016. It offered information of interest to persons facing a driving prohibition and included similar information from the law firm’s own website, which was intended for marketing purposes. The lawyer believed the blog threatened his law firm’s competitive position and that the employee was behind it.
On September 16, the employee was fired from her articling job, even though she denied writing the blog herself. She admitted that it was her husband’s blog, but denied giving him permission to create it. She claimed she had asked him to take down the website, but he had refused.
Trial Judge Finds the Employee Was Wrongfully Dismissed
The employer subsequently filed a civil claim against the employee for breach of contract, theft, trespass, and wrongful use of materials.
In turn, the employee commenced a claim for wrongful dismissal.
At trial, the judge ultimately dismissed the employer’s claims, finding that, while the articles posted on the blog were similar to articles posted by the employer, they were not identical. He further found that the blog did not infringe on copyright, nor did it disclose private information that the employer had not made public. Finally, he held that the blog did not disclose client confidences and could have been written by anyone making use of information in the public domain. Regarding the allegation that the employee was attempting to compete with the employer, the judge observed that the employee had not completed PLTC, obtained alternate articles, or worked for a law firm since, and was hardly in a position to compete with the firm.
The judge did allow the employee’s wrongful dismissal claim, awarding $18,934 in general damages and $50,000 in aggravated damages, finding the employer’s actions unfair and undertaken in bad faith.
Both parties appealed to the Court of Appeal. The employer challenged the trial judge’s conclusion that the employee was wrongfully dismissed. The employee cross-appealed, seeking damages in the amount of $161,650 for breach of contract and $110,000 in punitive damages for the loss of opportunity to become a lawyer.
Court of Appeal Increases Employee’s Damages
At the outset, the court found no error with the trial judge’s determination that the employee had been wrongfully dismissed and rejected the employer’s appeal.
Turning to the employee’s claim for higher general damages, the court stated:
“[T]he judge failed to award her damages based on the loss of opportunity to become a lawyer at the end of the articling period. He did so on the basis that there was no evidence that would enable him to value the potential increase in [the employee]’s income-earning capacity as a lawyer. He found such an award to be speculative.
With respect, I do not agree. The trial judge’s failure to award damages for loss of opportunity was an error in principle. The law has long recognized that the fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages for a breach of contract….
What [the employee] lost as a result of her wrongful termination was the opportunity to become a lawyer at the end of the articling period.”
As such, the court increased the employee’s award for general damages to $100,000.
The court also awarded the employee $25,000 in punitive damages, finding the employer’s conduct to have been “high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour.”
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