Michael Ford (post until Oct. 31/19)
Employment & Labour

B.C. ruling may have been different in Ontario

Arthur Zeilikman

A unanimous decision in British Columbia that ruled a partner is not an employee for the purposes of the province's Human Rights Code would likely have seen a different outcome in Ontario, Toronto labour and employment lawyer Arthur Zeilikman writes in HR Reporter. Read HR Reporter 

The article describes the legal career of John Michael McCormick, who began working with Fasken Martineau DuMoulin in 1970 and became an equity partner in 1979. He turned 65 in March 2010 and, following a partnership agreement to which all lawyers were subject, was due to retire on Jan. 31, 2011, the financial year-end of the firm, the article states.

"As an equity partner, McCormick had an ownership interest in the firm, a share in the profits of the firm and was entitled to a distributive share of the assets of the firm on its dissolution," writes Zeilikman. "Where firm debts were not insured, he was personally liable pursuant to the firm’s partnership agreement and the B.C. Partnership Act. McCormick was also entitled to various management privileges, none of which were available to firm employees."

McCormick and the firm were unable to reach an agreement that would allow him to work past his retirement age, and in December 2009, McCormick commenced a proceeding with the British Columbia Human Rights Tribunal alleging the firm had discriminated against him based on his age.

"At the hearing, the tribunal refused to accept the firm’s argument that the tribunal was without jurisdiction to hear this matter. The firm then brought an application for judicial review to set the tribunal’s decision aside. However, the chambers judge agreed with the tribunal’s decision," writes Zeilikman. "The matter was appealed to the British Columbia Court of Appeal. In reviewing the decision, the appeal court unanimously set the tribunal’s decision aside and allowed the firm’s appeal with costs.

"Speaking for the court, Justice Risa Levine elaborated on the meaning of the law of partnerships in Canada, stating that unlike a corporation, a partnership is not a separate legal entity - it is not separate from the partners who are merely its members."

If the same situation played out in Ontario, Zeilikman writes, it likely would have turned out differently.

"Section 3 of the Ontario Human Rights Code prohibits discrimination in contractual transactions," he writes. "The code states that persons having a legal capacity have a right to contract on equal terms without discrimination because of age.

"Interestingly, the Ontario Discriminatory Business Practices Act (DBPA) - a statute meant to eliminate discriminatory practices in business - does not list age as a ground pursuant to which discrimination can be alleged."

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