On March 7, 2013, the Supreme Court of Canada granted leave to appeal McCormick v. Fasken Martineau Dumoulin LLP.
Mr. McCormick was a partner at a law firm until he turned 65 and was required to retire by firm policy. He then filed a complaint with the Human Rights Tribunal alleging age-based discrimination. The law firm applied to have the complaint dismissed on the basis that Mr. McCormick was not “employed” by the partnership of which he was a member.
The Tribunal found that Mr. McCormick was an employee for the purposes of the Human Rights Code and allowed the complaint to proceed. On judicial review, the BC Supreme Court found that the Tribunal had acted correctly and had jurisdiction to determine whether someone was an employee for the purposes of the Code. The law firm appealed.
The BC Court of Appeal overturned the judgment of the Supreme Court and held the Tribunal did not have jurisdiction to hear the complaint. In relatively strong terms, the Court of Appeal held that it was a “legal impossibility for a partner to be employed by the partnership of which he is a member.” As the Tribunal’s jurisdiction under the Code was premised on an employment relationship, Mr. McCormick’s complaint could not succeed.
The Supreme Court of Canada will likely hear the appeal later this year or early in 2014.