Labor & Employment

Forced retirement of law firm partners gets green light from Canada's top court


A longtime equity partner at a major Canadian law firm has lost his battle against a policy requiring him to retire at age 65.

Ruling Thursday in a much-watched case brought by John Michael “Mitch” McCormick against Fasken Martineau DuMoulin, the country’s top court said partners do not qualify as employees under the Human Rights Code and hence can’t challenge partnership mandatory retirement plans, reports the Globe and Mail.

However, the Supreme Court of Canada opinion (PDF) left the door open for so-called partners who can prove they were treated like employees to take up the baton, as Murray Tevlin, a lawyer for McCormick, pointed out to the Legal Feeds blog of Canadian Lawyer & Law Times.

“As an equity partner, and based on his ownership, sharing of profits and losses, and the right to participate in management, [McCormick] was part of the group that controlled the partnership, not a person vulnerable to its control, and, for over 30 years, benefited financially from the retirement of other partners,” said the court in its unanimous opinion. “In no material way was [McCormick] structurally or substantively ever in a subordinate relationship with the other equity partners. It is true that the law firm had certain administrative rules to which [McCormick] was subject, but they did not transform the substance of the relationship into one of subordination or dependency. This is not to say that a partner in a firm can never be an employee under the Code, but in the absence of any genuine control of [McCormick] in the significant decisions affecting the workplace, there was no employment relationship between him and the partnership under the provisions of the Code.”

Fasken Martineau couldn’t be reached for comment, the legal publication says.

Additional and related coverage:

ABAJournal.com: “Canadian Appeals Court Dismisses Law Partner’s Age Discrimination Case, Says He’s Not an Employee”

ABAJournal.com: “Partner can sue own law firm as a whistleblower, top UK court rules”

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