“Supreme Court rules against lawyer who wouldn’t retire at 65â€
By Alyssandra Dunn
Summary
John Michael(Mitch) McCormick was a lawyer at Fasken Martineau DuMoulin LLP for 40 years. At the age of 65 he was asked to retire due to the firm’s mandatory retirement policy for partners. He refused to retire and alleged that the policy was age discrimination. The Supreme Court of Canada ruled that the firm’s policy was not discrimination on the grounds that that law firms and other partnerships are able to force their partners into retirement because they are not covered by provincial human rights codes.
In Canada, most workers do not face mandatory retirement. However, it is common practice to include a provision in partnership agreements at law and accounting firms.
Legal observers believed that if the Court decided the matter the other way it would open the gate for many partners to pursue human rights complaints based on age, gender and other discrimination matters.
The issue before the court was whether or not an equity partner at a law or accounting firm could be considered an employee and be protected by provincial human rights codes. The Supreme Court ruled that Mr. McCormick possessed too much control over his workplace to be considered an employee.
Mr. McCormick’s lawyers argued that because of the size of the firm, partners are essentially treated as employees. The firm controls all aspects of the lawyer’s working life including clients, tools, compensation and dress.
One of the arguments made by Fasken Martineau in the case was that mandatory retirement in partnerships was essential to attract new employees whose future goals are to become partners.
A Toronto lawyer who works on employment cases, stated that there is still an issue as to whether or not different kinds of partners with less control over their workplace environments can launch human-rights complaints, such as the growing number of non-equity partners at law firms.
This is a timely issue with baby boomers set to retire, many who can not afford to do so by the age of 65. Various reasons account for this, both professional and personal. With career changes of at least 3 on average in a person’s lifetime, retiring at age 65 is unlikely for many, who without pensions can not fathom living off Old Age Security and their CPP contributions.
As with academia, I believe the mandatory age of retirement should be banished. While I fully appreciate the need to make room for younger people to obtain and succeed in their work, is the only option to get rid of those who also can not afford to not work?
Although I would love to be retired well before 65, I would hate to have to do it because of a firm’s policy.
Especially considering that our life expectancy is increasing as new medical technologies are developed.
I understand that it may be frustration to be asked to retire, and even a little bit discriminatory considering most employers in Canada are not allowed to force retirement. But he was a partner in a law firm, and he signed the contract. Since it is a common practice to include a provision in partnership agreements at law and accounting firms regarding age of retirement, he should have been well aware that this was coming. If everyone is allowed to continue working until they see fit, then there will be no jobs for our generation.
I think the best solution in this situation is to include a clause in the partnership agreement that determines the special payment at the age 65 to the retired partner. It is fair for both parties. Additionally, a new worker will be hired in a firm.
As a partner at a law firm for 40 years, Mr. McCormick had more than enough time to dispute his contract. He is taking advantage of his legal background to get some cash out of his former firm, likely because he did not manage his money well. Hopefully he is mitigating his ‘loss’ by flying solo or starting a new firm.
I believe that individuals should not be forced to retire at a specified age. The case presented before me clearly demonstrates the social issue of ageism. The partner should have been aware of the retirement clause, however it does not mean that it is morally and ethically correct to force someone to withdraw. There are may have been extenuating circumstances, which prohibit the partner from seeking retirement. I believe that if he is forced to retire some sort of compensation should be awarded to the plaintiff.
I agree with Shannon that some form of compensation should be given if someone is being forced into retirement. Even though I see the merit in opening up the work force to upcoming generations, I can’t help but disagree with the decision. While the partnership agreement contained the clause, I don’t think it should be permitted for contracts to contain such a demand. I think that retirement is a personal decision that is made when the individual feels fit to retire, not something that one is forced into. While this particular individual may not experience financial issues, who’s to say others who are forced into early retirement won’t. Not only that, what if his job was one that he was extremely passionate about and one that he found pleasure in doing. Many individuals deteriorate both mentally and physically after they’ve been stripped of their purpose. Like they say, if you don’t use it you lose it.
While I agree with the majority of commentators that it seems remiss to force people into retiring at 65 I can’t agree without pointing out the problems that come from not retiring at 65. As a result of a huge portion of baby boomers not retiring at 65 (for many legitimate reasons including not being able to afford it and love of career) there has not been a natural moving up the ladder of the younger workforce. Those in their 40’s-50’s have not moved into the executive positions the baby boomers occupied, leaving those in their 20’s and 30’s without the boom of entry level jobs in which to start their careers. As a result a huge number of university graduates find themselves underemployed or biding their times in jobs outside their areas of expertise waiting for jobs to open up. While forced retirement doesn’t seem polite it would solve some of current job market problems.