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B.C. court quashes age-discrimination case

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The B.C. Human Rights Tribunal does not have the power to deal with an age-discrimination complaint filed against a prominent law firm by a 67-year-old Vancouver lawyer who refuses to retire, the province's Court of Appeal has ruled.

The case, keenly watched by law firms and lawyers nearing retirement age across the country, pits Vancouver lawyer John Micheal (Mitch) McCormick against Fasken Martineau DuMoulin LLP, where he has practised for more than 40 years.

Mr. McCormick refused to retire after he turned 65 in 2010, despite the terms of Fasken Martineau's partnership agreement. The agreement, like those at many other law firms, requires most partners to step down even though mandatory retirement for workers in the majority of fields across Canada has been abolished.

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Mr. McCormick took Fasken Martineau, one of the country's largest law firms, before the B.C. Human Rights Tribunal in December, 2009, and kept working while the case went forward, long after he was scheduled to leave.

The case hinged on whether law firms, which are owned by their partners, are deemed employers of those same partners under the law. The tribunal, and a B.C. Supreme Court judge last year, sided with Mr. McCormick, saying his relationship with the firm was that of an employee.

But on Thursday, the B.C. Court of Appeal ruled that a law firm cannot employs its partners, as it is actually owned by them.

The ruling means the province's human-rights code banning employers from age discrimination cannot override the law firm's partnership agreement, which Mr. McCormick signed when he joined the firm.

The unanimous decision of the three-judge panel, written by Madam Justice Risa Levine, calls the lower-court's ruling "legally unsupportable."

"There can be no doubt that in Canadian law, a partnership is not a separate entity from its partners, and a partner cannot be an employee of, or employed by, a partnership of which he is a member," Judge Levine writes.

Fasken Martineau welcomed Thursday's ruling.

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"We are satisfied with the decision, which reinforces our understanding of the law in British Columbia surrounding the terms of partnership agreements," William Westeringh, the firm's managing partner in Vancouver, said in an e-mailed statement. "This is an isolated issue that is unprecedented at Fasken Martineau."

Mr. McCormick or his lawyer could not immediately be reached for comment.

Many law firms have similar retirement clauses in their partnership agreements. Some retiring lawyers, however, are allowed to stay on in some form, particularly prominent ones, often taking the title "counsel."

A decision that ruled that these retirement clauses constituted age discrimination would have sent ripples through the legal community across the country, exposing other firms to similar human-rights complaints. The decision could also have affected other professionals who work in partnerships, such as accountants.

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About the Author
Toronto City Hall Reporter

Jeff Gray is The Globe and Mail’s Toronto City Hall reporter. He has worked at The Globe since 1998. From 2010 to 2016, he was the law reporter in Report on Business, covering Bay Street law firms and white-collar crime. He won an honourable mention at the National Magazine Awards for investigative journalism in 2010. More


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