By Nicole Salemi
Vancouver lawyer John Michael McCormick had been working for Fasken Martineau DuMoulin LLP for 40 years when he turned 65 in 2010. He refused to retire at that time, claiming that by forcing him to retire, the firm was engaging in age discrimination. The main issue in his case was whether a partner in a Limited Liability Partnership (LLP), such as a law or accounting firm, is considered an employee. If so, they would be covered by provincial human rights codes.
His firm argued that his status as a partner held too much power in his ability to vote in the firm’s board and share in their profits and losses to be considered an employee. McCormick’s lawyers argued that his work as a partner at the firm essentially made him an employee, because they controlled many aspects of his life at the firm, including clients, tools, support and compensation.
He brought his case to the British Colombia Human Rights Tribunal, who initially ruled that they had jurisdiction over this case, but the British Colombia Court of Appeal claimed that partners could not be considered employees and therefore not covered by provincial human rights codes. The Supreme Court of Canada agreed with this decision, ruling that law firms and other LLPs are allowed to force partners into retirement. Further, Justice Rosalie Abella ruled that courts must look into how much power and control a partner has in his workplace to determine whether he is an employee or not, and it must be examined on a case by case basis.
Most Canadian workers do not face mandatory retirement, although this is greatly followed in LLPs. However, some law firms allow partners to continue working past retirement, referring to them as ‘counsel’. Nonetheless, it is argued that mandatory retirement in LLPs is essential for attracting new employees who will later become partners in the firm.
The outcome of this case greatly affects all types of LLPs. If the Supreme Court ruled differently, partners would be able to claim human rights cases as employees, which would open the door to many cases regarding age, gender and other types of discrimination.
Article taken from The Globe and Mail