Mandatory Retirement by Alyssandra Dunn
“Supreme Court rules against lawyer who wouldn’t retire at 65”
By Alyssandra Dunn
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.