Law Times

Page 6 December 2, 2013 • Law Times COMMENT u Editorial obitEr By Glenn Kauth Let LAO lawyers unionize W ith the holidays around the corner, Legal Aid Ontario could reward its staff lawyers for their hard work by giving them the gift of collective bargaining. Last week, supporters of the LAO lawyers' organizing committee held yet another rally in an effort to boost their campaign for recognition of their right to bargain collectively through the Society of Energy Professionals. The Labour Relations Act excludes lawyers, but employers can grant voluntary recognition of their bargaining rights. LAO has declined to do so. In a letter in October, LAO chief executive officer Bob Ward suggested the lawyers are seeking a relationship no other group in the legal field has and reiterated the fact it has no obligation to recognize the union. Since then, the lawyers have stepped up their campaign with the Ontario Federation of Labour vowing its support at the rally last week. While it has no legal obligation to do so, LAO should relent on what's likely to be a losing battle. While it may be the exception for a trade union like the Society of Energy Professionals to represent lawyers, organizations like the Association of Law Officers of the Crown do bargain on behalf of counsel working for the Ontario government with provisions for arbitration. In Saskatchewan, CUPE Local 1949 represents legal aid lawyers. If LAO maintains that what it's lawyers are seeking is different, it should outline the type of collective-bargaining arrangement it would accept. LAO may fear increased costs if it allows for collective bargaining with its lawyers. It's a legitimate fear given its limited resources, but fairness dictates that it allow for an arrangement for its lawyers to have the same rights as their counterparts working for other government bodies. If LAO fears increased costs, it should be willing to enter into tough negotiations with whatever bargaining arrangement emerges. LAO might argue it can't pay its lawyers as much as those who work in other areas of government but it should be making its case at the bargaining table with the consequences that flow from that position rather than denying its staff the basic rights enjoyed across the public sector. — Glenn Kauth Law firm partners deserve human rights protections T aking up the cudgels for an aging law firm partner claiming age discrimination may not appear to be appropriate grist for a social justice column, but upon closer examination the cause appears worthy, particularly as the Supreme Court of Canada gears up to consider the matter. Lawyer John Michael McCormick was an equity partner at the British Columbia office of Fasken Martineau DuMoulin LLP. Upon becoming a partner, he had signed the firm's partnership agreement requiring him to retire at the age of 65 in the absence of an agreement to the contrary. With no such agreement offered to him, he filed an age discrimination complaint with the British Columbia Human Rights Tribunal in his 65th year. I initially thought the case was absurd. How could a partner successfully claim he had been the victim of age discrimination in the course of his employment? After all, lawyers know that partners are co-owners and not employees and hence protection against age discrimination during the course of employment isn't available. And McCormick wasn't just a partner; he was an equity partner with a capital account in the partnership. So what was he thinking when he filed his complaint? To my surprise, the tribunal rejected Law Times professionals who carry the law firm's motion to dismiss the complaint on a summary Social on business through partnerships. Further, modern basis. Faskens had argued the Justice partnerships bear little retribunal lacked jurisdiction semblance to the traditional because there was no employstructures of yesterday inment relationship between the volving small groups of peofirm and McCormick. The triple who collectively operated bunal accepted it couldn't cona business and shared profits. sider McCormick to be an emLarge, modern limited liabilployee as a matter of common ity partnerships with their law and under various statutes. management committees But that wasn't the end of the Alan Shanoff and managing partners have inquiry. Interpreting the legismore in common with corlation liberally and considering its broad purposes, the tribunal conclud- porations than the business structures ed Faskens did employ McCormick for of the past. Most partners have no say in the opthe purposes of the Human Rights Code. To my surprise again, the Supreme eration of the business or their pay. Most Court of British Columbia upheld the partners aren't true co-owners. Nontribunal's decision. But it appeared things equity, non-voting, and junior partners were in order once again when the British may have the prestige of the partnership Columbia Court of Appeal allowed the ap- label but in reality are indistinguishable peal after ruling that "a partnership is not, from employees. Their firms have elevatin law, a separate entity from, but is a col- ed them to the ranks of partner for varilective of, its partners, and as such, cannot, ous reasons, often to benefit more senior partners. Even most senior partners have in law, be an employer of a partner." The issue resurfaced recently when much in common with employees. They the Supreme Court of Canada grant- have little or no say in the running of the ed McCormick leave to appeal. That's business or the setting of compensation. when I started thinking about the issue. In short, most people with the title aren't This isn't merely an issue affecting law true partners as we've traditionally unfirms as it touches upon all manner of derstood the term. Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 • Tel: 416-298-5141 • Fax: 416-649-7870 www.lawtimesnews.com • clb.lteditor@thomsonreuters.com • @lawtimes Director/Group Publisher . . . . . . . . . . . . Karen Lorimer Editor in Chief. . . . . . . . . . . . . . . . . . . . . . Gail J. Cohen Editor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . . . . . . . . . . . .Yamri Taddese Staff Writer . . . . . . . . . . . . . . . . . . . . . . Charlotte Santry Copy Editor . . . . . . . . . . . . . . . . . . . . . . Mallory Hendry CaseLaw Editor . . . . . . . . . . . . . . . . . Adela Rodriguez Art Director . . . . . . . . . . . . . . . . . . . . . . Alicia Adamson Production Co-ordinator . . . . . . . . . . . . . Catherine Giles Electronic Production Specialist . . . . . . . Derek Welford Advertising Sales . . . . . . . . . . . . . . . Kimberlee Pascoe Advertising Sales . . . . . . . . . . . . . . . . Steffanie Munroe Advertising Sales . . . . . . . . . . . . . . . . . . . . . . . Grace So Advertising Sales . . . . . . . . . . . . . . . . . . . . Joseph Galea ©2013 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $179.00 + HST per year in Canada for print and online (HST Reg. #R121351134), $145 + HST per year for online only. Single copies are $4.50. Circulation inquiries, postal returns and address changes should include a copy of the mailing www.lawtimesnews.com Perhaps we shouldn't have any sympathy for McCormick. After all, he voluntarily signed the partnership agreement. He agreed to mandatory retirement. He of all people ought to have known that he was signing on as a partner, not as an employee. But the law prohibits contracting out of human rights protections. And we shouldn't be focusing on the matter purely as an age discrimination case. If human rights codes don't apply to partners with respect to age discrimination, they equally wouldn't apply when it comes to other grounds such as race, colour, ancestry, place of origin, political belief, religion, marital or family status, physical or mental disability, sex or sexual orientation. So the Supreme Court's decision to grant leave to appeal is a good thing. The case will provide the court with an opportunity to reverse the narrow interpretation of the B.C. appeal court and allow many partners to enjoy the protection of human rights codes. That's social justice. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail.com. label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. 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