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Workplace discrimination protections not for everyone

Supreme Court case highlights limits of workplace discrimination protections – excluding partners of firms

By Jeffrey R. Smith

Human rights legislation across Canada helps protect workers from discrimination based on certain grounds. This stems from the concept that all people should not only be free to live their lives without being adversely affected because of certain characteristics, but also should be able to make a living with the same freedom.

To this end, all Canadian jurisdictions banned mandatory retirement because it amounted to discrimination based on age against workers who might want to choose their own date of retirement.

However, human rights protection with regards to employment basically protects those who are considered to be in the position without power — employees — in the employment relationship. Employees have no say in their working conditions and compensation, but need their employment. Since they have no control, they could potentially be victim to unfair discrimination without legislative protection — discrimination which could affect their livelihood. But what about someone who isn’t necessarily on the employee end of the relationship who faces adverse treatment?

A few years ago, a British Columbia lawyer — who was a partner at his law firm — reached the age of 65. The firm had a policy requiring its partners to retire at that age, but the lawyer didn’t want to retire. He challenged the policy, claiming discrimination in employment based on age.

While age is a protected ground of discrimination, the firm argued the lawyer wasn’t an employee and therefore wasn’t subject to such protection. The B.C. Human Rights Tribunal disagreed, finding that the lawyer’s piece of the partnership was small and he had little control. Therefore, his relationship with the firm was similar to an employment relationship. The province’s Supreme Court backed up this finding.

However, the B.C. Court of Appeal overturned the decisions, finding the lawyer, as a partner, was not an employee and did not have an employment relationship with the other partners. As a result, he wasn’t subject to human rights code protections designed for employees. Just recently, the Supreme Court of Canada upheld this view, finding the lawyer, as a partner, had some degree of control over working conditions and financial benefits at the firm. This failed the test to determine if someone was an employee, said the top court: see McCormick v. Fasken Martineau Dumoulin LLP, 2014 SCC 39 (S.C.C.).

The ultimate determination of employee status as indicated by the Supreme Court of Canada makes sense. Someone who’s a partner in a law firm does usually have some say in how things are run and an opportunity to develop policies, such as a mandatory retirement policy for partners. However, a partner is only one partner of several — many in a large firm — and is only one voice of several. Having a say doesn’t mean what a partner wants will happen if more want something else.

It’s kind of an in-between situation — not quite in the powerless position of an employee, but not in a position of power like an employer, if in the minority. Should employment-based discrimination protections include individuals in such circumstances? If someone in a partnership agreement faces adverse treatment because of discrimination, what is her recourse? Or should she have any?

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Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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