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A partner is a partner and cannot be an employee of the
partnership. That decision came today from the BC Court
of Appeal in the
Fasken Martineau case.
The decision is of great interest to law firms of course, and to
other partnerships. But it is also important for employers
generally. It helps to better understand who is and is
not an employee entitled to human rights protections.
The case began when Mitch McCormick, a long time partner of
Fasken Martineau in Vancouver, challenged the mandatory retirement
provisions of his partnership agreement. The firm asked the
BC Human Rights Tribunal to dismiss the case on the basis that
McCormick was a partner, not an employee, and therefore not covered
by the Human Rights Code.
The Tribunal ruled against the firm. It analyzed the
partnership agreement and how the firm operated and determined that
the relationship looked enough like employment to be
covered by the protection from age discrimination in
employment. The firm then took the issue to the BC Supreme
Court. That court agreed with the Tribunal. The firm
appealed to the Court of Appeal which has now stated firmly:
There can be no doubt that in Canadian law, a partnership is not
a separate entity from its partners, and a partner cannot be an
employee of, or employed by, a partnership of which he is a
member.
Unless Mr. McCormick seeks leave to appeal to the Supreme Court
of Canada, his human rights complaint cannot be pursued any
further.
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