John Michael McCormick v. Fasken Martineau Dumoulin LLP

(British Columbia) (Civil) (By Leave)




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Human Rights — Employment relationship — Partnerships — Court of Appeal holding that a partnership should not be treated as the employer of a partner for purposes of human rights legislation — Whether a substantive analysis of the interpretation of “employment” for the purposes of human rights, in a modern context, should be precluded by a threshold test of technical legal form.

The applicant is an equity partner in the respondent law firm, a limited liability partnership registered under the Partnership Act, R.S.B.C. 1996, c. 348. He turned 65 years old in March 2010. Pursuant to a Partnership Agreement, absent an individual arrangement to the contrary, he was required to retire as an equity partner at the end of 2010. He filed a complaint with the British Columbia Human Rights Tribunal alleging that the respondent is discriminating against him in his employment, on the basis of age, contrary to s. 13 of the Human Rights Code, R.S.B.C. 1996, c. 210. The respondent applied to dismiss the complaint under ss. 27(1)(a) and (c) of the Code, on the grounds that the Tribunal does not have jurisdiction over the complaint and there is no reasonable prospect that it will succeed. The Tribunal dismissed the respondent’s application. The respondent sought judicial review.

Lower Court Rulings

June 2, 2011
Supreme Court of British Columbia

S110591, 2011 BCSC 713
Application for judicial review of a declaration by the British Columbia Human Rights Tribunal that it has jurisdiction to hear and consider applicant's complaint dismissed
July 19, 2012
Court of Appeal for British Columbia (Vancouver)

CA039128, 2012 BCCA 313
Appeal allowed, complaint dismissed