On May 22, 2014, the Supreme Court ruled that a partner in a BC law firm could not invoke human rights protection against age discrimination in employment to prevent his mandatory retirement.
In McCormick v. Fasken Martineau DuMoulin LLP, 2014 SCC 39, the Court held that the existence of an employment relationship was determined by reference to control exercised by the employer over working conditions and remuneration and a corresponding dependency on the part of the employee. The partner was not in a position of dependency; he was not vulnerable to the partnership’s control or subordinate to it in any way. He was a member of the group that controlled the partnership, with rights to participate in its management and to benefit from other control mechanisms. While the legislation was to be interpreted broadly to achieve its intended purpose, it could not be interpreted as extending protection to this relationship. The Court did not rule out the possibility that a partner could be found to be an employee of a partnership if the required elements of control and subordination were present on the facts.