Lawyers eye top court’s ruling on forced retirement for partners

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A Vancouver lawyer who worked for four decades at Fasken Martineau DuMoulin LLP and refused to step down at age 65 will find out on Thursday if the Supreme Court of Canada agrees that his law firm's mandatory retirement policy violated his human rights.

Lawyers of a certain age across the country have been closely watching the case of John Michael (Mitch) McCormick, ever since he objected to the mandatory retirement clause in his partnership agreement with Fasken Martineau that obligated him to step aside after he turned 65 in 2010.

While mandatory retirement is a thing of the past for workers in most industries across Canada, it is still common in the partnership agreements at many major law firms. Typically a handful of senior lawyers are invited to stay on, but not as equity partners, and are given the title "counsel."

Mr. McCormick, now 69 and no longer with the firm, had worked at Fasken Martineau ever since his career began in 1970. In 2009, as his 65th birthday approached and mandatory retirement loomed, he took his case to the British Columbia Human Rights Tribunal and won.

He kept on working even as the case made its way through the courts. In 2012, the B.C. Court of Appeal sided with Fasken Martineau.

The case hinges on whether B.C.'s human rights law applies to a law firm's partners. Fasken Martineau argues partners are owners, not employees, and so are not subject to the provincial human rights codes.

Mr. McCormick's lawyers argued that partners at a big firm are essentially treated as employees, and that the firm "controlled every aspect of his working life, including his client intake, tools, support, compensation, and dress."

The issue is not just of concern to law firms. The country's major accounting firms also have similar partnership structures, and they intervened in the case before the Supreme Court. They argued partners cannot be employees, since they share in a firm's profit and loss and bear its financial risk.

Gillian Hnatiw, a partner at Lerners LLP in Toronto who specializes in employment and human rights law, said her reading of the law is that equity partners are not employees.

But she says if the Supreme Court decides otherwise, it could open the door for partners to file other human rights cases against law firms, such as those alleging gender discrimination: "Even though I am sure a lot of the headlines will be about the age discrimination part, the more interesting fact … is the 'employment' issue."

Editor's Note: John Michael (Mitch) McCormick is the lawyer at the centre of the mandatory retirement case discussed in this story. He was incorrectly referred to as John Michael (Mitch) McConnell in an earlier version of this story.