WHO IS AN EMPLOYEE IN B.C.?

A while back, I wrote about a B.C. Human Rights Tribunal decision which determined that a partner in a law firm amounts to an employee for the purposes of B.C.’s Human Rights Code.  Our Court of Appeal has reversed that finding, injecting some practicality to what had become a technical and esoteric debate.

The Human Rights Tribunal had determined that an equity partner at the law firm of Fasken Martineau Dumoulin LLP could be considered to be employed for the purposes of the Human Rights Code.  Among other things, the Code protects employees from discrimination in employment.

Fasken’s had attempted to force equity partner John McCormick to retire from the practice of law, at age 65, in accordance with the firm’s partnership agreement.  McCormick filed a complaint of discrimination pursuant to the Code.

Fasken’s argued (rightly, in my view) that the Tribunal had no jurisdiction over the matter because McCormick was not in a relationship of “employment” with the firm.  The Tribunal disagreed, gave a broad, liberal, and purposive interpretation to the Code, and held that McCormick was employed by Fasken’s in the context of how that term is used in the Code.

On appeal, B.C.’s Supreme Court upheld that decision.  Reviewing the Tribunal’s earlier decision, the Court gave voice to the quasi-constitutional nature of human rights legislation and also adopted the “broad, liberal, and purposive” approach to its application.

The Court stated that it would be inconsistent with the Code’s objectives to exclude a category of persons from its protections as a result of using a strict, legalistic view of their status at common law.  I wouldn’t have thought, previously, that anyone would consider law firm partners to be a category of persons requiring protection.

Regardless, the Court also noted that Fasken’s partnership agreement contemplated the kind of control traditionally present in an employer/employee relationship.  It gave the firm’s management control over the type services partners provided, how they were provided, whom they were provided to, the partners’ compensation level, etc.

Now, as sometimes happens, B.C.’s Court of Appeal has reversed the earlier findings of both the Tribunal and the lower Court.  The Court of Appeal has ruled that a partner in a limited liability partnership is not an employee of that partnership for the purposes of the Code.

That being the case, McCormick’s complaint was not within the jurisdiction of the Human Rights Tribunal and he could not seek the protection of the Code in response to the imposed retirement.

In effect, the Court of Appeal found that McCormick could not simultaneously be a partner in the law firm and an employee of that firm.  That makes a lot of sense to me.

The Court determined that the control and direction exercised by the firm’s elected management over individual partners did not change the fact that partners are not employees.  As such, they do not come under the protection against discrimination which the Code offers to employees.  Not even a “broad, liberal, and purposive” application of the Code changes that.

At least two aspects of this sequence of decisions are notable to me. 

First, I’m always amazed when a decision by an expert administrative body such as the Human Rights Tribunal is upheld by one level of court but is then reversed at the next level. 

I’ve never grasped how it is that the leading legal minds in our society can look at the same question but arrive at completely opposing conclusions.  It truly points to the fact that there is no “right” answer to legal issues – winning simply means that the final panel looking at the matter agreed with you.

Second, my own (admittedly very unscientific) observation over a period of time is that expert administrative bodies have a tendency to expand their own jurisdiction.  I don’t suggest they do it knowingly or intentionally - it just seems to happen.

It occasionally takes a strongly-worded decision by, say, an appeal court to snap everyone back to reality and to place the jurisdictional line back where it belongs.  I’d say the recent decision of the B.C. Court of Appeal in McCormick’s case had that effect and, in my own view, that’s a good thing.                                

Robert Smithson is a labour and employment lawyer, and operates Smithson Employment Law in Kelowna. For more information about his practice, or to subscribe to You Work Here, visit www.smithsonlaw.ca. This subject matter is provided for general informational purposes only and is not intended as legal advice.