A partner is a partner and cannot be an employee of the
partnership. That decision came today from the BC Court
of Appeal in the
Fasken Martineau case.
The decision is of great interest to law firms of course, and to
other partnerships. But it is also important for employers
generally. It helps to better understand who is and is
not an employee entitled to human rights protections.
The case began when Mitch McCormick, a long time partner of
Fasken Martineau in Vancouver, challenged the mandatory retirement
provisions of his partnership agreement. The firm asked the
BC Human Rights Tribunal to dismiss the case on the basis that
McCormick was a partner, not an employee, and therefore not covered
by the Human Rights Code.
The Tribunal ruled against the firm. It analyzed the
partnership agreement and how the firm operated and determined that
the relationship looked enough like employment to be
covered by the protection from age discrimination in
employment. The firm then took the issue to the BC Supreme
Court. That court agreed with the Tribunal. The firm
appealed to the Court of Appeal which has now stated firmly:
There can be no doubt that in Canadian law, a partnership is not
a separate entity from its partners, and a partner cannot be an
employee of, or employed by, a partnership of which he is a
Unless Mr. McCormick seeks leave to appeal to the Supreme Court
of Canada, his human rights complaint cannot be pursued any
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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