SCC to hear lawyer’s age discrimination case

The Supreme Court of Canada has agreed to hear the appeal in an age discrimination case involving B.C. lawyer John Michael (Mitch) McCormick.

In McCormick v. Fasken Martineau Dumoulin LLP, former Fasken’s equity partner McCormick was asked to retire from the firm when he turned 65 in 2010, and to begin the transition to retirement when he turned 62. Like many large law firms in Canada, Fasken’s requires partners to retire at 65 as stated in their equity partnership agreement.

However, British Columbia no longer enforces mandatory retirement and since McCormick wasn’t ready to retire, he took the firm to the B.C. Human Rights Tribunal alleging age discrimination.

The tribunal accepted McCormick’s argument that being an employee extended beyond the common law definition.

“The present state of the law is that if a firm organizes itself as a Canadian partnership, it need not concern itself about the human rights of its partners,” says McCormick’s counsel Murray Tevlin.

“We argued that this relationship [between McCormick and Fasken] looks and sounds just like employment and should be treated as employment just for the purposes of human rights,” he tells Legal Feeds.

When Fasken appealed the tribunal’s decision to the B.C. Supreme Court, Justice Catherine Bruce stated that an equity partner in a law firm can be considered an employee and therefore McCormick was justified to bring the case before the tribunal for alleged human rights violations.

When the case went to the B.C. Court of Appeal, however, the court sided with the law firm by stating that equity partners are not considered employees and therefore McCormick could not be protected by human rights legislation from age discrimination.

“[A] partner cannot be an employee of the partnership of which he or she is a member, because he or she cannot employ him or herself. . . .” wrote Justice Risa Levine in the appeal court ruling.

Tevlin says this case has implications for all Canadian employees, not just lawyers, calling it an issue of “national importance.”

“You see an aging workforce deciding that it has to work longer than maybe it had once planned,” he says.

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