Law Times

Page 2 May 26, 2014 • Law TiMes www.lawtimesnews.com In a unanimous ruling writ- ten by Justice Rosalie Abella, the top court upheld the B.C. appeal court's decision. e tri- bunal, it found, had no jurisdic- tion in the case. According to the ruling, the determining factor in deciding whether someone working for a partnership is an employee or not relates to the dual concepts of "control" and "dependency." The court stated: "The more the work life of individuals is controlled, the greater their dependency and, consequent- ly, their economic, social and psychological vulnerability in the workplace. . . . Control and dependency are a func- tion not only of whether the worker receives immediate direction from, or is affected by the decisions of others, but also whether he or she has the ability to influence decisions that critically affect his or her working life." While McCormick took di- rection from management, the court found that, on its own, doesn't meet the threshold for an employment relationship. It went on to list the numer- ous ways in which McCormick could influence his role in a way that was impossible for a regu- lar employee. McCormick could vote for the firm's board or even stand for election; he could inspect the firm's accounts; he was free from dismissal or discipline and the firm could expel him only via a special resolution; and, of course, he would receive his partnership stake upon leaving Faskens. Indeed, the decision noted McCormick had benefited from the mandatory retirement of his peers for decades before chal- lenging the provision. "As an equity partner, and based on his ownership, sharing of prof- its and losses, and the right to participate in management, M was part of the group that con- trolled the partnership, not a person vulnerable to its control, and, for over 30 years, benefited financially from the retirement of other partners. In no material way was M structurally or sub- stantively ever in a subordinate relationship with the other eq- uity partners." McCormick's counsel, Mur- ray Tevlin, responded to the ruling via e-mail on ursday. He pointed out that while his client's circumstances didn't qualify as an employment rela- tionship, the top court differed from the appeal court in leav- ing open the possibility an eq- uity partner lacking sufficient control could count as being in one. e Supreme Court "de- termined that in some cases, a partner might have human rights protection," he wrote. "However, the relationship of control and dependency, in this case, did not meet that threshold." Paul Boniferro, a labour law- yer and senior manager at Mc- Carthy Tétrault LLP, says his firm's own partnership agree- ment was never in doubt but notes he's happy with the ruling nonetheless. More importantly, Boniferro says the court's decision speaks to the need for law firms to be innovative in finding roles for long-term partners who want to continue to contribute. "It's not just a matter of a part- nership agreement or whether a human rights code exempts partnership agreements from coverage. e more important and pressing issue for firms to deal with, I think, is how to deal with its aging population." Boniferro says the ruling will settle for some time the festering debate over whether the "corpo- ratization" of law firms has di- minished the role of the partner. "Ultimately, the court found that one's control over their practice, their clients, and the people they work with leads to the same conclusion, which is: No, you're not an employee; you are a partner, a part owner, and you do have that control." LT NEWS it will help screen out 'bad' people and keep organizational assets and vulnerable clients safe. e available social science evidence, however, does not support this assumption," the report states. "e academic research that has been done to date has found that past criminal convictions are not correlated with a likelihood to commit a work-related offence in the future." Pillay says while safety is paramount, "we shouldn't fool our- selves into thinking we have a meaningful screening process, which we don't." Defence counsel Daniel Brown notes disclosures of non-convic- tion records are a concern for the criminal bar as well. "I've dealt with lots of people who have been acquitted of crimi- nal charges, who have been investigated and no criminal charges were laid. And they'll come back to me months later or years later and say, 'If I was found not guilty or the Crown attorney dropped the charges against me, why is this still showing up?'" he says. "And there's very little I can do to assist them right now because every police force has their own policies and procedures about what they'll disclose. So there is no consistency amongst the police on what information they'll share . . . and, more importantly, they all have their own individual appeal routes." If people are unhappy with what police will disclose, they oen have to go through costly appeal processes that don't necessarily re- sult in a win for the applicant, Brown notes. "So normally they're told, 'Tough, but we're going to disclose this.'" Pillay says the CCLA was able to get the Ontario Association of Chiefs of Police to pass a motion on a presumption against the re- lease of non-conviction records, a move she calls "a serious first step in the right direction." When it comes to broader legislation, the CCLA recommends taking notes from the B.C. Criminal Records Review Act. "Governments should introduce legislation based on British Columbia's Criminal Records Review Act, establishing centralized bodies to conduct vulnerable sector screening and evidence-based risk assessments. ese bodies should provide screening services for all positions that would qualify for a vulnerable sector check," the report suggests. It continues: "British Columbia provides a unique, centralized process available to some employers aimed at determining whether a potential employee or volunteer poses certain risks to children or the elderly. is process, governed by B.C.'s Criminal Records Re- view Act, has significant benefits in terms of consistency, accuracy, human rights, privacy and fairness." Brown says privacy commissioners have in the past deemed the scope of criminal records checks to be intrusive and recommended a greater degree of care to protect people's privacy. Although pri- vacy commissioners can tell police they're in the wrong, they can't stop them unless there's legislation preventing certain disclosures, he adds. In March, the information and privacy commissioner of On- tario found police in Guelph, Ont., had inappropriately used and disclosed the records of a man regarding incidents protected under the Youth Criminal Justice Act. But the commissioner's request for proof of correction of the records was a recommendation as op- posed to an order. Brown says the disclosure of non-conviction records "is a huge problem," especially in the context of mental illness. It's ironic, he says, that emergency services provided to people who were in crisis could haunt them for the rest of their lives. In some cases, people can get pardoned convictions erased from their records even as non-conviction information remains. Even if the record indicates dropped charges or an investigation, it will have a negative impact on employment, says Brown, adding it's a practice that goes against the presumption of innocence the crimi- nal justice system upholds. "When two candidates or multiple candidates are applying for the same job, what employer is willing to take a risk? Even the in- nuendo of a criminal investigation is enough to persuade most em- ployers that candidate isn't right for the job." 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