The British Columbia Court of Appeal recently confirmed that a partnership is not a separate legal entity from its partners. Consequently, partners cannot be considered employees of the partnership to which they belong.
In McCormick v. Fasken Martineau DuMoulin a partner brought a complaint against his law firm, challenging the mandatory retirement clause in the partnership agreement. He alleged that forcing him to retire at age 65 was discrimination in employment on the basis of age, contrary to s. 13 of the Human Rights Code. The firm applied to dismiss the complaint on the basis that partners are not employees and, therefore, are not covered by s. 13.
The BC Human Rights Tribunal considered the partnership agreement and the firm’s operations and found that the partner’s role in the firm fell within the definition of employment under the Code. That decision was upheld by the Supreme Court of British Columbia on judicial review.
On appeal, the BC Court of Appeal held that for the Tribunal to have jurisdiction over a discrimination in employment complaint, there has to be a relationship between two entities: an employer and an employee. The Court determined that “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.” As a result, provisions of the Code which contemplate an employment relationship are not available to partners in a partnership.
Fasken Martineau DuMoulin LLP v. BC Human Rights Tribunal and John McCormick