Canadian Lawyer

September 2014

The most widely read magazine for Canadian lawyers

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16 S e p t e m b e r 2 0 1 4 w w w . C A N A D I A N L a w y e r m a g . c o m by PhiliP Slayton top Court talEs An old-fashioned and romantic view The Supreme Court is wrong to think the average law firm partner has much control or power within the firm. dushan milic S upreme Court watchers have been febrile and overwrought during the last few months. They have been obsessed with speculation about the spat between the chief justice and the prime minister (much too much has been made of this incident). They have endlessly analyzed the court's truculence in the face of an overbearing executive branch (that's the prime minister). A side-effect, is some interesting recent decisions of the court have been largely ignored. It's time for ink- stained wretches and pontificating profes- sors to get back to their Supreme Court of Canada knitting, dull as that now seems given the recent Period of Excitement. The judgment in McCormick v. Fasken Martineau DuMoulin, handed down at the end of May, would be a good place to start. During oral argument, Chief Justice Beverley McLachlin described it as a "fas- cinating case." The issue was whether a partner in a law firm was an employee, for some purposes at least. The appellant, an equity partner at Faskens, argued before the B.C. Human Rights Tribunal, a provi- sion in Faskens' partnership agreement requiring him to retire at 65 constituted age discrimination in employment, forbid- den by the B.C. Human Rights Code. The tribunal agreed. Faskens' application for judicial review was dismissed by the B.C. Supreme Court, but the Court of Appeal found for the law firm, and the dispute was off to Ottawa. Justice Rosalie Abella delivered the unanimous judgment of a seven-member panel (justices McLachlin, Louis LeBel, Marshall Rothstein, Thomas Cromwell, Michael Moldaver, and Andromache Karakatsanis). She began by describing Faskens' management structure. Day-to- day running of the partnership is delegated to a partnership board of 13 partners. The board determines the compensation criteria for equity partners, and appoints and gives direction to the firm's managing partner, who is responsible for overall management. A vote of the partnership is required to amend the partnership agreement or admit a new partner (that was how the mandatory retirement provision was created in the first place). Partners are liable for the debts of the partnership. Any partner in a larger law firm will recognize this structure. The key to an employment relation- ship, wrote Abella, is the "extent to which the worker is subject to someone else's decision-making over working conditions and remuneration." She wrote of the appel- lant, "I see him more as someone in control of, rather than subject to, decisions about workplace conditions. As an equity partner, he was part of the group that controlled the partnership, not a person vulnerable to its

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