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Canada: Does A Mandatory Retirement Policy In A Partnership Agreement Constitute Age Discrimination Under The Human Rights Code? Not In This Case, Says The B.C. Court Of Appeal
In a recent decision of the British Columbia Court of Appeal, Fasken
Martineau DuMoulin LLP v. British Columbia(Human
Rights Tribunal), the Court held that an equity partner of a
law firm partnership was not considered an "employee" for
the purposes of the British Columbia Human Rights Code
(the "Code").
John Michael McCormick was a lawyer and equity partner at the
Vancouver office of the law firm Fasken Martineau DuMoulin LLP
("Fasken"), which he had worked for
since May 1970. As an equity partner, Mr. McCormick had
signed a partnership agreement which stated that he was required to
retire as an equity partner at the end of the fiscal year in which
he reached the age of 65, subject to any individual arrangement he
had with the firm stating otherwise. Mr. McCormick was scheduled to
retire from the firm as of January 31, 2011. Up to such point, Mr.
McCormick had not reached any agreement with the firm as to any
continuing role he may have within the firm post-retirement.
Therefore, in December 2009, a few years before he was slated to
retire, Mr. McCormick filed a complaint with the Human Rights
Tribunal alleging that Fasken had discriminated against him by
requiring that he retire at the age of 65, contrary to s. 13 of the
Code.
(a)
refuse to employ or refuse to continue to employ a person,
or
(b)
discriminate against a person regarding employment or any term or
condition of employment
Because of the race, colour, ancestry, place of origin,
political belief, religion, marital status, family status, physical
or mental disability, sex, sexual orientation or age of that
person...
Fasken's applied to dismiss the complaint on the basis that
the Tribunal did not have jurisdiction, based on the fact that Mr.
McCormick was not an "employee" of the firm and that
there was thus no employment relationship that could be the subject
of a complaint under the Code. The Tribunal dismissed Fasken's
application, agreeing with McCormick that he should be considered
an employee for the purposes of the Code. Fasken sought
judicial review of the Tribunal's decision, but the Chambers
Judge concurred with the Tribunal and upheld its decision. This
decision was then appealed to the Court of Appeal.
The Court of Appeal overturned the Tribunal's decision,
finding that an equity partner in a limited liability partnership
(LLP) as in this case, was not an employee of the
partnership for the purposes of claiming age
discrimination under the Code. Mr. McCormick's age
discrimination complaint was thus dismissed. The Court's
reasoning was primarily based on the fact that under Canadian law,
a partnership is not a separate entity from its individual
partners, and a partner cannot be an employee of, or employed by, a
partnership of which he is a member. In essence, the court held
that though a partnership and its partners employ associate lawyers
and other staff, a partner by virtue of his or her membership in
the partnership, cannot employ him or herself.
Furthermore, the Court held that despite a broad, liberal and
purposive interpretation of the Code, this did not give the Court
license to extend the Code's application to every relationship
and circumstance, so as to prevent discrimination wherever it may
be found.
This decision sheds some light on the issue of mandatory
retirement within a partnership arrangement and makes it quite
clear that a partner of a law firm cannot rely on the employment
related provisions of the Code for the purposes of making an age
discrimination complaint against the partnership.
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