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

Correct ruling in B.C. discrimination case: Zeilikman

The Supreme Court of Canada’s decision to uphold mandatory retirement for an equity partner at a Canadian law firm is an example of the Supreme Court's proper interpretation of the legislation, says Toronto employment lawyer Arthur Zeilikman.

The high court recently ruled Vancouver lawyer John Michael McCormick cannot proceed with his age discrimination case before the British Columbia Human Rights Tribunal.

McCormick began working with the firm 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.

But 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.

The Supreme Court’s 7-0 decision upholds a 2012 ruling by the B.C. Court of Appeal, which said a law firm partner is an employer and not an employee, and therefore not subject to the province’s human rights legislation, the Financial Post reports.

“My view is that the Supreme Court was correct in its decision as it was faced with determining whether Mr. McCormick was an employee or not,” says Zeilikman, of Zeilikman Law. “I do not see the decision as controversial per se. While interpretation of human rights legislation is supposed to be liberal, it cannot be anarchic. If the code is to encompass protection for partners, then it is for the provincial parliament to so legislate."

The decision was clear in saying that the B.C. Human Rights Code applies to employees, not partners, says Zeilikman, adding: “If Mr. McCormick were an employee, he would have received the benefit of its protection.”

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