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w w w . C A N A D I A N L a w y e r m a g . c o m S e p t e m b e r 2 0 1 4 17 control." Abella said firm committees "are necessary mechanisms to implement and coordinate the firm's policies, not limita- tions on a partner's autonomy." The B.C. Human Rights Tribunal, she said, had been mistaken when it assessed control in terms of administrative restrictions on partners rather than examining the underlying power dynamics of the relationship. The Supreme Court was clearly impressed by the able argument of Irwin Nathanson, Faskens' counsel. (It's worth watching Nathanson at work, just to see how it's done; a video of the McCormick case is archived on the Supreme Court's web site.) If the appellant was an employ- ee, asked Nathanson, then who was the employer? His answer: There wasn't one. Those who exerted power in the partner- ship were not the employer; their authority was delegated to them by the equity part- ners. If there was no employer, there could be no employees, and ergo no employ- ment relationship. The correct view, said Nathanson, was that the equity partners were co-owners of a common enterprise. But this seductive analysis is a triumph of form over reality and ignores what Abella called "underlying power dynamics." Rank- and-file partners in a big law firm do not think of themselves controlling the part- nership. Most partners, even quite senior ones, have little or nothing to do with how the firm operates. Law firms are typically run by a small cadre that tells everyone else what to do. The cadre has the power to punish, most importantly by influencing the compensation committee to cut a part- ner's share of profits. Other partners have little or no control over what happens. They are vulnerable. They feel like employees. They should be so regarded. A good analogy is an employee of a big public corporation who owns some of the corporation's common shares. In a sense, he is one of the owners of the corporation. He can vote his shares at the annual gen- eral meeting to elect members of the board, who in theory run the business. But when he goes into the office in the morning, he would be unwise, in a confrontation with his boss, to insist on his status as an owner. That status means nothing as far as his job is concerned. He must do what he's told. He's like a partner in a big law firm. To think the common or garden-vari- ety law partner is anything other than an employee is to cling to an old-fashioned and romantic nature of a legal partnership, to hark back to the days when the partners gathered around a conference table every morning to open and scrutinize the incom- ing mail together. Nowadays it's quite dif- ferent; in a big firm like Faskens, partners may not even recognize each other when they pass on the street. And the rise of the limited liability partnership has removed joint-and-several liability, the philosophy of "one-for-all, and all-for-one," was the glue holding the traditional law firm together. Abella was never a partner at a big firm. Nor, if I'm not mistaken, has McLachlin, Cromwell, or Karakatsanis had that dubi- ous distinction. If these eminent jurists had ever been partners in a big firm, they would not think a partner was "someone in control of, rather than subject to, decisions about workplace conditions." Philip Slayton is president of PEN Canada. Follow him on Twitter @philipslayton. O P I N I O N TIME: EVENT: 12-month, part-time, executive LL.M. for lawyers and business professionals Advance your career to the next level! Learn important legal and business concepts that can be immediately applied to better serve your clients. Explore the implications of real-life cases in an increasingly complex global business environment. Acquire in-depth knowledge of how the law interacts with both the private and public sectors. For more information please contact Jane Kidner, Assistant Dean Professional Legal Education at j.kidner@utoronto.ca http://www.law.utoronto.ca/programs/GPLLM.html or visit our website: ntitled-3 1 14-08-07 2:58 PM

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