Supreme Court of Canada grants Leave to Appeal in McCormick
v. Fasken Martineau Dumoulin LLP.
Until 2009, Michael McCormick was an equity partner at the law
firm Fasken Martineau DuMoulin LLP. When he reached 65 years of age
in 2009, McCormick was advised by the firm that he was obliged to
withdraw from the firm as a partner – mandatory retirement at
age 65 was a condition of the partnership agreement McCormick
signed with the firm. McCormick filed a complaint with the British
Columbia Human Rights Tribunal, on the basis that the obligation to
withdraw amounted to employment discrimination on the basis of
The case has implications for any organisation structured as a
partnership and for the mandatory retirement policies of all
employers. The case may also clarify a more fundamental tension
– the nature of the employment relationship at its core.
History in the Courts
Madam Justice Bruce of the BC Supreme Court found that the human
rights principles “should not be determined by reference to
narrow legal principles” such as those provided by
partnership and contract law. She noted that as an individual
equity partner, McCormick had very little control over his work
life, remuneration and work product. Bruce J. agreed with the Human
Rights Tribunal, finding that McCormick was an employee for the
purposes of the Human Rights Code.
A unanimous Court of Appeal disagreed, finding that even though
the Human Rights Code deserves a “broad, liberal,
and purposive interpretation”, the language of the
Partnership Act is clear, and that, “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
On March 7, 2013, the Supreme Court of Canada granted McCormick
leave to appeal.
Lessons for Employers
The concept of employment is fact specific and companies should
be careful when engaging individuals other than through an
employment relationship to provide services. Key takeaways are:
Every accounting, architecture, engineering, law, and other
organisation structured as a partnership – either by choice
or by professional regulation – should examine internal
policies relating to non-governing partners, or risk future
exposure to potential Human Rights complaints.
Mandatory retirement is unlawful in most Canadian jurisdictions
and policies that discriminate based on age should be examined
closely, even when those policies do not apply directly to the
traditional concept of the employee.
Allowing leave gives the SCC the opportunity to clarify whether
an individual can be an employee for one purpose, without
necessarily being an employee for all purposes. If McCormick could
be a partner for tax purposes, but an employee for human rights
purposes, then other relationships (such as consultants and other
independent contractors) might be equally subject to dual
If you are concerned that your organisation is exposed to any of
the above risks please speak with your legal counsel to obtain
further information and advice.
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.
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