In 2009 John McCormick, 64 years of age, a senior partner at
Fasken Martineau DuMoulin LLP, brought a complaint to the Human
Rights Tribunal of British Columbia. He argued that a
provision in his partnership that required that he retire at age 65
constituted age discrimination in employment contrary to the
Human Rights Code of British Columbia.
The law firm argued that, as an equity partner, McCormick had no
entitlement under the Code which deals with employees and
not partners. The Human Rights Tribunal concluded that there
was an employment relationship nonetheless.
The British Columbia Court of Appeal concluded that as an equity
partner McCormick was not the subject of an employment relationship
and accordingly was not protected by the age discrimination
provisions of the Code.
McCormick appealed the ruling to the Supreme Court of
Canada. It rendered its decision on May 14, 2014.
Justice Abella speaking for an unanimous court said:
"In the absence of any genuine control over Mr. McCormick
in the significant decisions of affecting the workplace, there
cannot, under the Code, be said to be an employment
relationship with the partnership."
As an equity partner who participated fully in the firm and its
decisions he could not gain the protection of the Code
since those protections are afforded to employees only.
Partners, if they are protected from age discrimination, must find
that protection in the provisions of the Partnership Act
that provides that a partner must act with "the utmost
fairness and good faith" to other members of the firm.
It is not unusual in business and law partnerships for
"partners" so described, to be partners in name only,
with little control over decision making, or even participation in
decisions relating to the partnership.
Is a non-equity partner an employee for the purposes of the
protections of the Code? Is a profit-sharing partner
out of luck if subjected to age discrimination? There is no
magic in the word "partner". It appears that it is
purely a question of the level and extent of the control exercised
by the individual. If you are the boss, or one of the bosses,
you are not an employee. However, if you are called a
"partner" that does not necessarily mean that you forgo
the protections afforded by the Human Rights Code.
Most "partners" are nothing more than glorified employees
and to deny them protection against age discrimination is, in
itself, an act of discrimination.
The control test relied upon by the Supreme Court of Canada is a
slippery slope. For each case must be determined on its
When the essential elements needed to support control are
insufficient the applicant is deemed an employee who benefits from
the Code's protection against age
discrimination. But if elements of control are sufficient the
non-employee or partner must resort to the general provisions of
the Partnership Act which may or may not provide adequate
protection against age discrimination. It appears that, as a
result of the Supreme Court of Canada ruling, each case must
examine the essential character of the work relationship between
the individual and the firm or corporation. In each case this
relationship must be examined and tested by the tribunal or court
before a determination can be made.
In McCormick's case his status as a partner, which permitted
him to vote and stand for election for the firm's board as well
as share in firm profits and losses, meant that he exercised such
control over his workplace that he did not rate the benefits
available to an employee suffering age discrimination. Each
court now will have to examine the nature of the
"partnership" relationship before it can determine
whether such protections are available.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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