Client Update: Professional Partnerships Breathe Easier

This morning the Supreme Court of Canada released its much awaited decision in McCormick v. Fasken Martineau DuMoulin, holding that most legal (and other professional) partnerships are not subject to Human Rights obligations to partners, because there is no “employment relationship” between a firm and its partners. In the Fasken’s case, the issue was the partnership provision which required an equity partner to retire at age 65, a provision common in most professional partnerships. While partners were subject to various policies and administrative rules, the Supreme Court formulated the analysis as one of control and dependency:

…the test is who is responsible for determining working conditions and financial benefits and to what extent does a worker have an influential say in those determinations?

The Court very strongly expressed the view that in most partnerships equity partners have a right to participate meaningfully in the decision making process. The partner in question was “part of the group that controlled the partnership, not a person vulnerable to its control.”

The Supreme Court noted that in some jurisdictions – most notably the United Kingdom, Australia and New Zealand – there are specific statutory provisions which make employment legislation (including Human Rights) applicable to partnerships. The Court noted also the duty of fairness and good faith specifically set out in the B.C. Partnership Act but then added that it would be difficult to see how that duty could preclude a partnership from instituting a mandatory retirement policy “designed to benefit all partners by ensuring the regenerative turnover of partnership shares”.

One final note: professional partnerships must still take care that not too many energized senior partners “jump ship” late in their careers.

SHARE

Archive

Search Archive


Generic filters
Filter by Custom Post Type

 
 

Client Update: New regulation under New Brunswick’s Occupational Health and Safety Act tackles workplace violence and harassment – coming into force April 1, 2019

February 7, 2019

Chad Sullivan and Bryan Mills New Brunswick has recently introduced a new regulation under the Occupational Health and Safety Act on the topic of problematic workplace conduct. The change will bring New Brunswick in line…

Read More

Client Update: Not a “token gesture”: Nova Scotia Court of Appeal confirms deductibility of future CPP disability benefits from tort damages

January 18, 2019

Jennifer Taylor In an important decision for the auto insurance industry, the Nova Scotia Court of Appeal has confirmed that future CPP disability benefits are indeed deductible from damages awarded in Nova Scotia cases for…

Read More

Client Update: Change is the only constant – Bill C-86 changes in federal labour and employment regulation

January 18, 2019

Brian Johnston, QC and Matthew Jacobs Bill C-86, enacted as SC 2018, c. 27, will effect massive changes upon how federal labour and employment relations are regulated. They come into effect in 2019 with staggered…

Read More

2018 Year in Review: Atlantic Canada Labour & Employment Law Developments

January 17, 2019

We can all make 2019 a success by building on the year that was. For employers, 2018 was a year of many notable developments in labour and employment law across the country. We saw Ontario…

Read More

Client Update: Atlantic Canada pension and benefits countdown to 2019

December 28, 2018

Level Chan and Dante Manna As 2018 comes to an end, we countdown some pension and employee benefits developments in the last year that we anticipate may lead to developments in 2019. Discrimination in benefits…

Read More

Client Update: Canada’s Proposed Cannabis Edibles, Extracts and Topicals Regulations Revealed

December 21, 2018

Kevin Landry The first look at regulations for cannabis edibles, extracts and topicals has arrived. The Federal Government has opened a 60-day consultation period respecting the strict regulation of additional cannabis products. Notice of the consultation was accompanied…

Read More

Client Update: Recent Supreme Court of Nova Scotia decision drives home the importance of credibility

December 20, 2018

Erin Best and Kara Harrington “This case is about pain, how it was caused, by what accident and the opinions of dueling experts.”¹ “In this case, like so many, the assessment of the evidence depends…

Read More

Client Update: Land use planning in Prince Edward Island: the year in review

December 20, 2018

Jonathan Coady and Michael Fleischmann Overview Once again, the time has come to review the year that was and to chart the course for the year ahead. For municipalities, developers and planning professionals throughout Prince…

Read More

Client Update: Nova Scotia Labour Standard Code changes – domestic violence leave & pregnancy / parental eligibility

December 14, 2018

Following the various Stakeholder Consultations (which Stewart McKelvey participated in on behalf of Nova Scotia Employers), the Government has changed the Labour Standards Code Regulations effective January 1, 2019 to: a) provide for up to…

Read More

Client Update: Coming to Canada? You may need biometrics / Mise à Jour : Vous pensez bientôt venir au Canada? Vous pourriez avoir besoin de fournir vos données biométriques

December 6, 2018

Version française à suivre Sara Espinal Henao Canada has expanded its permanent and temporary immigration requirements to include biometrics – the measurement of unique physical characteristics, such as fingerprints and facial features. The new requirements,…

Read More

Search Archive


Generic filters
Filter by Custom Post Type