By Lauren Wianecki
Supreme Court denies lawyer’s challenge of firm’s mandatory retirement for partners
John McCormick, a 65-year-old lawyer previously employed by Fasken Martineau law firm in British Columbia was denied his claim of age discrimination by the Supreme Court of Canada. McCormick, a lawyer on staff at Fasken Martineau and also a partner with the firm, questioned the company’s mandatory retirement policy. Although mandatory retirement is, for the most part, illegal in Canada, Fasken Martineau was of the view that McCormick was in fact an ‘equity partner’, suggested that he was not classified as an employee and that he could not be considered an employee. McCormick challenged the policy on the basis that in his view, he was an employee and protected from age discrimination by the Human Rights Code.
Was McCormick an employee or a partner, or both? In taking his case forward, McCormick appealed to the British Columbia Human Rights Tribunal. The Tribunal found that McCormick was more of an employee than a partner in the firm but did determine that he enjoyed partner status. That said, it found that his authority was limited and that the power and control was really vested in the Executive Committee of the firm and the CEO.
Unsatisfied with the decision of the Human Rights Tribunal, Fasken appealed to the British Columbia Supreme Court. The decision of the Supreme Court upheld the Tribunals findings and its decision, basing its decision on the fact that the company exerted authority over its employees and partners in the form of ‘employment like conditions.’ The matter was appealed to by Fasken Martineau to the BC Court of Appeal who overturned both the Tribunal and Supreme Court decision.The Court of Appeal based its decision on the fact that under a limited liability partnership such as that which existed between Fasken Martineau and McCormick, a partner was unable to be employed by other partners and could not be covered by the protection that would be afforded to an employee. The Court ruled that Mr. McCormick controlled his working conditions and income, had a say in the management and a share in its financial management. The case was appealed by McCormick to the Supreme Court of Canada. The appeal was dismissed with the Supreme Court basing its decision on the fact that in its view, McCormick controlled his working conditions and income, had a voice when it came to company management and profited financially. Because he was a partner he had a say and therefore was not completely subject to company direction.
This summary is based from this article found on “Employment Law Today”: