Supreme Court of Canada to Clarify Who Qualifies for Protection Under Human Rights Legislation

December 10, 2013

On December 13, the Supreme Court of Canada (SCC) will hear the appeal of Michael McCormick, equity partner at the respondent law firm, Fasken Martineau DuMoulin LLP. McCormick has appealed the decision of the British Columbia Court of Appeal (BCCA)1 to Canada’s highest court, which held that the British Columbia Human Rights Tribunal lacked jurisdiction to hear his age discrimination complaint. The BCCA found that since there was no relationship of “employment” between McCormick, an equity partner, and his law firm, his discrimination complaint could not be heard. For McCormick and other complainants like him, unless the alleged discrimination occurred in the area of “employment” (or another applicable area under the Act), a remedy cannot be obtained under the human rights legislation.

McCormick turned 65 years old in 2010 and pursuant to the partnership agreement at Fasken Martineau DuMoulin LLP, he was required to retire at the end of the financial year. McCormick filed a complaint with the BC Human Rights Tribunal on the basis that the firm, where he was an equity partner since about 1979, discriminated against him on the prohibited ground of age. At issue was whether the partnership relationship was one of “employment,” contemplated by the Act. The BC Human Rights Tribunal, and subsequently, the British Columbia Supreme Court (BCSC), found in favour of McCormick, holding that for the purpose of the human rights legislation, a partnership may be treated as a separate legal entity from its partners. McCormick’s relationship with the firm would therefore be one of “employment” giving the tribunal jurisdiction to hear his age discrimination complaint.

On appeal, the BCCA reversed the decision of the BCSC, holding that the BC Human Rights Tribunal did not have jurisdiction to hear the discrimination complaint. Writing for a unanimous BCCA, Madam Justice Levine’s analysis recognized that human rights legislation, given its quasi-constitutional status attracted a broad, liberal and purposive interpretation, but she refused to uphold the earlier decisions that the relationship between the law firm partnership and equity partner was one of “employment.” Her analysis focused on the irrefutable legal principle that a partnership is not a separate legal entity at law from its partners and therefore, the decision of the BCSC could not be supported.

The SCC is now tasked with deciding whether the relationship between a partner and the partnership is one of “employment” within the meaning of human rights legislation. More broadly speaking, it has the opportunity to clarify if individuals who are not, strictly speaking, “employees,” can claim protection from discrimination and seek a remedy under human rights legislation.

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