Editorial: Mandatory retirement issue resurfaces

When the Supreme Court of Canada ruled on the issue of mandatory retirement of law firm partners in a B.C. case last year, there was speculation the issue would likely arise again in other circumstances or another jurisdiction. While a more recent case involves an accounting firm, the discrimination complaint by a lawyer and accountant filed with the Human Rights Tribunal of Ontario presumably has implications for the legal industry as well.

In this case, Brian Leve was an income partner at Grant Thornton LLP who, according to one of the interim rulings in the case, maintains he had no entitlement to an equity interest in the partnership, had no voting rights allowing him to participate in determining the conditions of his employment, and had no say over who the firm admitted or removed from the partnership.

The B.C. case of McCormick v. Fasken Martineau DuMoulin, of course, involved an equity partner. Last year, the Supreme Court upheld a ruling dismissing his case after considering whether someone working for a partnership is an employee. The key issues, it found, were the dual concepts of control and dependency.

Leve’s case, then, will involve the issue of mandatory retirement for non-equity partners under Ontario’s Human Rights Code rather than B.C. legislation, so it could come to a different result. Grant Thornton has moved to dismiss the case, most recently on the basis that Leve should have filed it around the time he signed the partnership agreement rather than after his retirement on Dec. 31, 2013. On April 27, the tribunal thankfully rejected that argument. “I agree with the applicant that requiring applicants to file applications with the Tribunal within one year of the date on which an applicant becomes aware of the future application of an allegedly discriminatory policy would lead to absurd results,” wrote adjudicator Jo-Anne Pickel in Leve v. Grant Thornton LLP.

“It would require applicants to complain of allegedly discriminatory practices that have not yet occurred and, significantly, that may never occur,” she added, noting there’s no guarantee someone will actually retire when they first join a firm.

Given the greying of the bar and the trend towards more non-equity partners, the issue of mandatory retirement is an important one that will affect a growing number of people and deserves a full airing. The case is also a reminder of the need for law firms to find ways for their long-term partners to continue to play a role given that they often have lots to contribute.
    — Glenn Kauth

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