International Top 30 position: 4

Your partners are not your employees: Supreme Court of Canada clarifies the application of the control/dependency test

By Dana Hooker and Jeff Bastien

In 2009, John McCormick, an equity partner in the law firm Fasken Martineau DuMoulin, filed a complaint with the British Columbia Human Rights Tribunal, alleging that the firm’s requirement that equity partners retire from the partnership and divest their equity at age 65 was age discrimination in employment, contrary to section 13 of the British Columbia Human Rights Code, RSBC 1996, chapter 210 (‘the Code’).

The firm applied to have the complaint dismissed on the basis that the matter was not within the jurisdiction of the tribunal and that there was no prospect the complaint would succeed. The firm’s primary position was that because Mr McCormick was an equity partner in the firm, there was no employment relationship that could be the subject of a complaint under section 13 of the Code. The tribunal denied the firm’s application to dismiss, however, and concluded that the relationship between Mr McCormick and the firm was one of ‘employment’ for the purposes of the Code.

On judicial review, Justice Bruce of the Supreme Court of British Columbia agreed with the tribunal, indicating that the application of the Code must be based on a conclusion that the complainant and the alleged offender are in an employment relationship in fact and in substance. In Mr McCormick’s case, many of the attributes of his relationship with the firm were the same as those found in a traditional employer/employee relationship and therefore the tribunal’s decision to deny the firm’s application to dismiss was justified…

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