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Lawyer’s fight over mandatory retirement heads to Supreme Court

Lawyer’s fight over mandatory retirement heads to Supreme Court

Sean Kilpatrick/THE CANADIAN PRESS

The Supreme Court of Canada has agreed to hear the case of a Vancouver lawyer who refused to retire from his firm and filed a human-rights complaint alleging age discrimination.

The case, keenly watched by law firms and lawyers nearing retirement age across the country, pits Vancouver lawyer John Micheal (Mitch) McCormick, who turns 68 this month, against Fasken Martineau DuMoulin LLP, where he 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 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. He has since left the firm.

Last year, the B.C. Court of Appeal ruled that the B.C. Human Rights Tribunal does not have the power to deal with the complaint, because law firm partners are part owners, not employees.

Faskens said it believed the B.C. court got it right.

"We believe the B.C. Court was correct in their ruling which reinforced 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 a statement. "We will look forward to presenting our case to the Supreme Court."

Murray Tevlin, Mr. McCormick's lawyer, said the issues in the case go far beyond his client.

"Human rights laws protect most people from forced retirement in most circumstances," Mr. Tevlin said in an e-mail. "The issue here is whether those laws apply to large firms organized under statutes as limited liability partnerships, for example, or other non-traditional or unconventional work arrangements."

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."

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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 affect other professionals who work in partnerships, such as accountants.

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