Canada: BC Supreme Court Finds Law Firm & Equity Partner In An Employer-Employee Relationship

In Fasken Martineau DuMoulin LLP v. British Columbia (Human Rights Tribunal), 2011 BCSC 713 (Fasken Martineau), the Supreme Court of British Columbia recently upheld the British Columbia Human Rights Tribunal's (the BCHRT) finding that an equity law firm partner was an "employee" of his law firm for the purposes of the British Columbia Human Rights Code (the Code).


John McCormick (McCormick) filed a complaint against Fasken Martineau DuMoulin LLP (Faskens) with the BCHRT alleging that the firm discriminated against him on a prohibited ground, contrary to s.13 of the Code, by requiring him to retire at the age of 65 (the Complaint). The partnership agreement with McCormick, and every other equity partner at the firm, imposed a mandatory retirement age of 65 and stated that arrangements to allow an equity partner to continue working past 65 would be "the exception rather than the rule".

Tribunal Decision

Since protections afforded by s.13 of the Code only apply to employment relationships, before accepting jurisdiction to hear the Complaint, the BCHRT had to establish whether or not McCormick was an employee of Faskens for the purposes of the Code. In making this determination, the BCHRT accepted that the concept of employment should be given a broad and liberal approach for human rights purposes. It analyzed the four factors traditionally accepted as indicators of an employment relationship – utilization, control, financial burden and remedial purpose – and concluded that the relationship between McCormick and Faskens was one of "employment". All four factors favoured treating McCormick as employed by Faskens for the purposes of the Code.

Court Decision

Faskens then applied to the Court for judicial review, arguing that the BCHRT incorrectly concluded that the relationship between McCormick and Faskens was subject to the Code and that the Complaint was within its jurisdiction. The Court affirmed these decisions.

The Court supported the BCHRT's use of the four factor test to determine whether or not the relationship was one of "employment". The Court found that despite not being a typical master and servant relationship, Faskens used the services of McCormick for the purposes of enhancing the assets of the firm and exercised a great deal of control over the services he provided and the intellectual property that he produced. Further, the way in which the firm's management determined and paid his compensation pursuant to criteria set by the firm was more consistent with an employment relationship than a business contract. Finally, the Court addressed what it referred to as the two prongs of the "remedial purpose test". First, with respect to who is best able to remedy the discrimination, the Court found that the factors of control, utilization and financial burden all pointed towards Faskens and it was therefore the best able entity to remedy the discrimination. Second, with respect to whether the circumstances of the complaint fell within the overarching purposes of the Code, the Court emphasized the quasi-constitutional nature of the Code and the corresponding requirement that it be given a broad, liberal and purposive interpretation in order to ensure that its purposes are attained. It also emphasized that while s.13 is limited to employment relationships, whether or not an employment relationship exists depends on the facts and substance of the relationship, not the label attached to it. In the case of Faskens and McCormick, the Court found that, despite the partnership context, their relationship possessed characteristics sufficiently indicative of a traditional employer/employee relationship and therefore that the protections afforded by the Code were available to McCormick.

As a further argument in this case, Faskens suggested that it was not an entity distinct from its individual equity partners and that the Complaint could not be sustained because it would mean that, as an equity partner, McCormick was effectively suing himself. The Court dismissed this argument. By providing for the arbitration of disputes between a partner and the firm in its partnership agreement, Faskens acknowledged that in some instances individual partners are distinct from the firm. Further, because the board and the managing partners exert a significant amount of control over individual equity partners, and because the identity of the board and managing partners fluctuate over time, McCormick was not actually suing himself. The Court also distinguished limited liability partnerships, such as Faskens, from regular partnerships and limited partnerships and likened a limited liability partnership to a corporate entity, distinct from its individual members.

Finally, the Court emphasized that the human rights protections provided by the Code cannot be contracted out of. Thus, the inclusion of a mandatory retirement age in the partnership agreement did not, and could not, prevent the Code from applying to the relationship between McCormick and Faskens.


This characterization by the Court of the relationship between an equity partner and his law firm as one of "employment" could prove to have important implications for partnerships and law firm partnerships in particular. The decision also further demonstrates how broadly human rights legislation may be read in order to afford individuals protection against discrimination. However, it will be interesting to see how this decision is received in other provinces. This is particularly true in light of the Alberta Court of Appeal's decision earlier this year of Lockerbie & Hole Industrial Inc. v. Alberta (Human Rights and Citizenship Commission, Director), 2011 ABCA 3 (Lockerbie), which was not cited in the written decision of Fasken Martineau. In that decision, the Alberta Court of Appeal ruled that the concept of an "employer" does not extend to the owner of an industrial site who receives the benefit of an individual's services, therefore, essentially accepting a narrowed interpretation of the definition of "employer". This narrowed interpretation of "employer" was more recently followed by the Alberta Court of Queen's Bench in 375850 Alberta Ltd. v. Noel, 2011 ABQB 218.

Faskens has appealed the Supreme Court of British Columbia's ruling.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.