BC Court of Appeal Rules on Age Discrimination Complaint

In Fasken Martineau DuMoulin LLP v. British Columbia (Human Rights Tribunal), 2012 BCCA 313, the British Columbia Court of Appeal rejected a challenge to a law firm's policy of mandatory retirement brought by one of the firm's equity partners to the British Columbia Human Rights Tribunal. The Court held that a partner is not an employee of the firm and that the Human Rights Tribunal does not have jurisdiction to hear such a complaint.

The complainant was an equity partner in the Vancouver office of Fasken Martineau DuMoulin LLP (“Fasken Martineau”). He started his career at the firm in 1970. The partnership agreement provided that “Each Equity Partner shall retire as an Equity Partner at the end of the Year in which the Partner reaches the age of 65, but as provided in paragraphs (d) and (e) of this Section 9.2 may be permitted to continue working with the Firm.” The complainant turned 65 in March 2010.

The complainant filed a complaint with the Tribunal alleging age discrimination contrary to s. 13 of the Human Rights Code (the “Code”), which prohibits discrimination in employment on the ground of age. Fasken Martineau brought an application to dismiss the complaint on the basis that the complainant, as an equity partner, was not an employee.

Both the Tribunal and the judge on judicial review concluded that for the purpose of human rights legislation, a partnership could be treated as a separate legal entity from its partners and as the employer of a partner, and that the Tribunal had jurisdiction to hear the complaint. Fasken Martineau appealed.

The Court of Appeal first considered the legal nature of a partnership and concluded that there can be no doubt in Canadian law that a partnership is not a separate legal entity from its partners, and a partner cannot be an employee of, or employed by, a partnership of which he is a member. Put simply, he or she cannot employ him or herself.

The question for the Court of Appeal was whether this well-established principle of law was over-ridden by the Code, which is to be given a broad, liberal and purposive interpretation consistent with the characterization of human rights legislation as “quasi-constitutional.”

Importantly, the Court of Appeal noted, citing Supreme Court of Canada authority, the Code does not extend to every relationship, and the liberal interpretive approach to human rights legislation does not provide a basis for tribunals or courts to ignore the words of the legislation to prevent discrimination wherever it is found.

The Court noted that partnerships are not exempt from the employment provisions of the Code. In this case, however, the question was whether the complainant, as an equity partner, was employed by the firm.

The Court ultimately held that the principles of interpretation of the Code did not change or override the underlying funda-mental legal principle that a partner cannot be employed by the partnership of which he is a member.

As with all statutes, the interpretation of the Code, stated the Court, is an exercise to which well-established fundamental principles of law apply. If there are gaps in the legislation, it is the task of the legislature to remedy them.

The Court allowed the appeal, set aside the Tribunal's decision, and dismissed the complaint against Fasken Martineau.

Irwin Nathanson, QC, and Peter Senkpiel of Nathanson, Schachter & Thompson LLP acted for the appellant, Fasken Martineau DuMoulin LLP.

Murray Tevlin and John Chesko of TevlinGleadle acted for the respondent, John Michael McCormick.

Lawyer(s)

Murray Tevlin Irwin G. Nathanson

Firm(s)

Nathanson, Schachter & Thompson LLP Tevlin Gleadle Curtis