A partner is a partner and cannot be an employee of the partnership. That decision came today from the BC Court of Appeal in the Fasken Martineau case.
The decision is of great interest to law firms of course, and to other partnerships. But it is also important for employers generally. It helps to better understand who is and is not an employee entitled to human rights protections.
The case began when Mitch McCormick, a long time partner of Fasken Martineau in Vancouver, challenged the mandatory retirement provisions of his partnership agreement. The firm asked the BC Human Rights Tribunal to dismiss the case on the basis that McCormick was a partner, not an employee, and therefore not covered by the Human Rights Code.
The Tribunal ruled against the firm. It analyzed the partnership agreement and how the firm operated and determined that the relationship looked enough like employment to be covered by the protection from age discrimination in employment. The firm then took the issue to the BC Supreme Court. That court agreed with the Tribunal. The firm appealed to the Court of Appeal which has now stated firmly:
There can be no doubt that 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 is a member.
Unless Mr. McCormick seeks leave to appeal to the Supreme Court of Canada, his human rights complaint cannot be pursued any further.
Update: McCormick did go to the Supreme Court of Canada which agreed on March 7, 2013 to hear his appeal. December 6, 2013 is the tentative hearing date.