A partner in a limited liability partnership is not an employee of the partnership for the purpose of claiming protection of human rights legislation from age discrimination. The British Columbia Human Rights Tribunal and the Supreme Court, on judicial review, decided that for the purposes of human rights legislation, a partnership may be treated as a separate legal entity from its partners and as the employer of the partner, resulting the Tribunal having jurisdiction to hear a complaint by a partner of discrimination in his employment. On appeal by the partnership, the Court of Appeal found that the principles of interpretation of the Human Rights Code, RSBC 1996, c.210, which mandated a broad, liberal approach consistent with its remedial purposes, do not extend to overriding the fundamental and well-established principle of law that a partnership, is not, in law, a separate entity but a collective of its partners. As such, it cannot in law be an employer of a partner. The Tribunal had no jurisdiction to hear the complaint and the appeal was allowed.

25. September 2012 0

Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Human rights complaints – Discrimination – Age – Statutory interpretation – Employment law – Employee – definition – Partnerships – Mandatory retirement – Judicial review – Jurisdiction – Compliance with legislation

Fasken Martineau DuMoulin LLP v. British Columbia (Human Rights Tribunal), [2012] B.C.J. No. 1508, 2012 BCCA 313, British Columbia Court of Appeal, July 19, 2012, L.S.G. Finch C.J.B.C., M.V. Newbury and R.E. Levine JJ.A.

The respondent lawyer is one of approximately 60 “equity partners” in the Vancouver office of the appellant, Fasken Martineau Dumoulin LLP, an international law firm operating as an extra-provincial limited liability partnership registered under the Partnership Act, RSBC 1995, c.348. The respondent worked as a lawyer for all of his legal career since May 1970, became an equity partner in 1979, and turned 65 years old in March 2010. He was a party to the partnership agreement that governed the relationship of all of Fasken’s partners. Pursuant to the agreement, the respondent was required to retire on January 31, 2011, the financial year end of the firm in which he turned 65.

In December 2009, the respondent filed a complaint with the Human Rights Tribunal alleging that Fasken discriminated against him by requiring that he retire as an equity partner at the end of the year in which he turned 65, contrary to s.31 of the Code which prohibited discrimination in employment on the ground of age. Fasken responded with an application to dismiss the complaint under 27(1)(a) and (c) of the Code, on the grounds that the Tribunal did not have jurisdiction over the complaint and there was no reasonable prospect it would succeed. In its application, Fasken argued that the respondent was not an employee of the firm and there was no employment relationship that could be subject of a complaint under s.13. The Tribunal dismissed Fasken’s application, finding that it had jurisdiction over the complaint on the basis that the respondent was, for the purpose of the Code, employed by the firm. On judicial review, the chambers judge agreed with the decision of the Tribunal that the respondent was, for the purpose of the Code, employed by the firm, and dismissed the application.

On appeal, Fasken maintained that the legal principle that a partnership is not a separate entity but the sum of its partners is not displaced by a broad, liberal and purposive interpretation of the Code, but is determinative of the jurisdiction of the Tribunal. Fasken said that, in law, there can be no employment relationship between a partner and the firm of which he is a member, and that legal conclusion precludes an analysis of any factual details that determine whether an employment relationship existed for the purposes of the Code. The respondent maintained that the common law characterization of a legal relationship did not apply for human rights purposes, and did not restrict the analysis of the relationship in accordance with the factors that have been found to bring a relationship not customarily considered that of employment within the jurisdiction of the Code.

The appeal was allowed. While the Appeal Court agreed that the principles of interpretation related to the Human Rights Code mandated a broad, liberal approach consistent with its remedial purposes, those principles did not change underlying legal relationships to the extent found by the Tribunal and the lower court. In particular, they did not extend to overriding the fundamental and well-established principle of law that a partnership was not, in law, a separate entity from its partners. It was a legal impossibility for a partner to be employed by the partnership of which he or she was a member. A dispute between a partner and the partnership is a dispute among partners. Section 27(j) of the Partnership Act and provisions of the partnership agreement provided procedural mechanisms for resolving disputes among the partners. They did not create a separate legal entity. There was no employment relationship between Fasken and the respondent and his complaint was not within the jurisdiction of the tribunal.

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