McCormick v Fasken Martineau DuMoulin LLP

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McCormick v Fasken Martineau DuMoulin LLP is a landmark Supreme Court of Canada decision about whether a partner in a professional law partnership can be considered an employee under a human rights code. In short, the Court ruled that McCormick, an equity partner, was part of the group that controlled the partnership, not someone who was subject to the firm’s control in a way that would create an employment relationship under British Columbia’s Human Rights Code.

What happened
- John Michael McCormick became an equity partner at the law firm Fasken Martineau DuMoulin in 1979.
- The firm later adopted a rule requiring equity partners to retire as equity partners and divest their ownership at the end of the year they turn 65. Partners could choose to stay on as employees or as non‑equity partners, but this was supposed to be the exception.
- In 2009, when he was 64, McCormick filed a complaint with the British Columbia Human Rights Tribunal claiming age discrimination in employment under BC’s Human Rights Code.
- The firm argued there was no workplace relationship covered by the Code because McCormick was an equity partner, not an employee. The Tribunal initially found an employment relationship existed, applying factors like how much the firm controlled the work, how the partner used the firm’s resources, and the remedial purpose of the law.
- The British Columbia Supreme Court upheld the Tribunal’s decision after reviewing the matter.

What the Supreme Court decided
- The Supreme Court of Canada overturned the lower courts and dismissed the appeal. It held that McCormick was part of the group that controlled the partnership and did not operate under the firm’s control in a way that would make him an employee under the Human Rights Code.
- The Court explained that a partner cannot generally be considered an employee of the partnership to which they belong. Instead, the key questions are the degree of control and dependency: who can influence important workplace decisions, wages, and terms of work.
- While equity partners typically do not have an employment relationship with the firm, the Court acknowledged that partnerships do employ staff and that the partnership form raises important questions about fairness and good faith among partners. It suggested that some discrimination concerns could potentially be addressed under partnership law rather than the Human Rights Code.

Significance
- McCormick v Fasken Martineau DuMoulin LLP is a landmark decision because it clarifies that, in many cases, a partnership relationship is not the same as an employment relationship for human rights purposes.
- The Court emphasized a control/dependency test to determine the true nature of the relationship, focusing on who has real power over working conditions rather than just titles or formal labels.
- The ruling may influence future cases involving other professionals, independent contractors, shareholders, or partners who work under similar arrangements.

Notes
- The majority opinion was written by Justice Abella, with other justices concurring; one justice did not participate in the decision.