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Vancouver lawyer scores win in mandatory retirement fight

A Vancouver lawyer who accused his own law firm of age discrimination, challenging its mandatory retirement policy before the B.C. Human Rights Tribunal, has won a key legal victory.

The case, closely watched in legal circles, pits Mitch McCormick, 66, against his law firm, Fasken Martineau DuMoulin LLP. The firm, like many others across Canada, requires most of it partners to wind down their practices as they reach a certain age.

In a judgment released Thursday, Madam Justice Catherine Bruce of the B.C. Supreme Court upheld a December ruling of the B.C. Human Rights Tribunal, which declared that partners of the law firm were in fact employees and subject to the province's human rights legislation.

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Fasken Martineau argued that, as a partnership made up of owners, it was beyond the reach of human-rights legislation, and took the human-rights decision to the B.C. Supreme Court for a judicial review.

The firm has also pointed out that all of its partners voluntarily signed on to the firm's retirement policy as part of their partnership agreements.

But in Thursday's ruling, Judge Bruce agreed with the tribunal's liberal interpretation of the definition of employment, deciding that despite the fact that the law firm is a partnership, it still acts as Mr. McCormick's employer.

All of Canada's provinces have done away with mandatory retirement for most workers. However, many law firms or other professional partnerships still retain a forced retirement age.

(Typically, some distinguished lawyers are allowed to stay on, sometimes not as full equity partners. In Fasken Martineau's case, some partners can apply to continue working, with the title "counsel" to the firm.)

While the ruling is not binding on other courts, legal observers have said Mr. McCormick's case could open other law firms across the country to similar challenges before human-rights tribunals.

The issue at hand is also only the first stage in Mr. McCormick's battle. Both the rulings are preliminary and only deal with the question of whether B.C.'s human-rights legislation applied to the case. The issue of whether Mr. McCormick was actually discriminated against based on age must still be argued. And the latest decision could still be appealed.

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Mr. McCormick, who has spent 41 years at Fasken Martineau's Vancouver offices since articling there in 1970, was supposed to retire shortly after turning 65 last year. Instead, he hired a lawyer and took his firm to the human rights tribunal. He continued working at his firm in the interim.

Fasken Martineau said it was still weighing its next move after the ruling.

"We are disappointed with the decision. We are currently considering the implications of the decision and will explore our options before deciding on any next steps," William Westeringh, the firm's managing partner in Vancouver, said in an e-mailed statement.

Mr. McCormick's lawyer Murray Tevlin said he and his client were pleased with the ruling and intend to press ahead at the tribunal.

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