In the case of McCormick vs. Fasken Martineau DuMoulin LLP, the Human Rights Tribunal in British Columbia determined on July 19, 2012 that there is a distinct difference between an employee and a partner of a firm.
McCormick attempted to sue his partners for enforcing retirement at age 65. Since there was no prior discussion or agreement between the partners that McCormick would retire at age 65, he sited them for age discrimination. Initially he won the case.
The Firm appealed and the Tribunal unanimously voted in favour of the Firm. It was determined that as a partner of the Firm, McCormick was not an employee because he could not be his own boss. “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 or she is a partner. In other words, a partner cannot employ him or herself.”
Because McCormick was deemed “not” to be an employee, he was not protected by the Human Rights Code. “The Court also found that a broad, liberal and purposive interpretation of the Code cannot change this legal conclusion. The management of the firm, as constituted by election by the partners from time to time, may exercise aspects of control over the partners in accordance with the partnership agreement (i.e., working conditions, remuneration and other aspects of the operation of the business) that are in virtually all ways similar to the control that may be exercised by the executive and management of a corporation over its employees.”
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