Cases test whether law firm partners are employees for human rights purposes

Mndatory retirement policies draw scrutiny from the Supreme Court of Canada

It is generally settled in Canada that when employers impose mandatory retirement policies on their employees, it amounts to age discrimination in violation of the country’s human rights code. However, when Vancouver lawyer John Michael McCormick turned 65 in 2010, his law firm expected him to see his way out the equity-partnership door. McCormick had been an equity partner at Fasken Martineau (or one of its predecessors) since 1979, and the firm’s partnership agreement mandates retirement from equity partnership the year an equity partner turns 65, although he may continue working at the law firm.

McCormick filed an age discrimination complaint with the British Columbia Human Rights Tribunal, which has jurisdiction in employer/employee matters. There, the central issue became whether McCormick, a partner in a partnership, can be considered an employee for human rights purposes. If not, the tribunal would lack authority to hear the case. The Court of Appeal for British Columbia took a differing stance on this matter than previous judicial opinions from the tribunal and the British Columbia Supreme Court. 

Legal Impossibility

In addition to taking a generally broad view of the definition of employment, to determine whether an employment relationship existed, both the tribunal and British Columbia Supreme Court used an analysis examining whether the alleged employer uses or gains a benefit from the person; what sort of control the alleged employer has over the person (wage determination and working conditions, for instance); whether the alleged employer bears financial burden, or responsibility to pay the person; and whether the alleged employer can remedy the alleged discrimination. Applying this test, they both determined that Fasken Martineau and McCormick have an employment relationship.

Associate Editor

Melissa Maleske

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