Supreme Court of Canada to Hear Mandatory Retirement Case

On March 7, 2013, the Supreme Court ofCanada granted leave to appeal McCormickv. Fasken Martineau Dumoulin LLP.

Mr. McCormick was a partner at a law firmuntil he turned 65 and was required to retire by firm policy. He then filed a complaint with the HumanRights Tribunal alleging age-based discrimination. The law firm applied to have the complaintdismissed on the basis that Mr. McCormick was not “employed” by the partnershipof which he was a member.

The Tribunal found that Mr. McCormick wasan employee for the purposes of the HumanRights Code and allowed the complaint to proceed. On judicial review, the BC Supreme Courtfound that the Tribunal had acted correctly and had jurisdiction to determinewhether someone was an employee for the purposes of the Code. The law firm appealed.

The BC Court of Appeal overturned thejudgment of the Supreme Court and held the Tribunal did not have jurisdictionto hear the complaint. In relatively strongterms, the Court of Appeal held that it was a “legal impossibility for apartner to be employed by the partnership of which he is a member.” As the Tribunal’s jurisdiction under the Code  was premised on an employmentrelationship, Mr. McCormick’s complaint could not succeed.

The Supreme Court of Canada will likelyhear the appeal later this year or early in 2014.
Any questions relating to the information in this article may be directed to Keith Mitchell, Partner.