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Law Times • sepTember 22, 2014 Page 13 www.lawtimesnews.com SUPREME COURT OF CANADA Employment EMPLOYMENT RELATIONSHIP Partners not normally employees of partnership Respondent was lawyer and equi- ty partner in appellant firm and party to partnership agreement governing relationship of all law firm's partners including retire- ment. Agreement required re- spondent to retire year he turned 65. Respondent filed complaint with respondent Human Rights Tribunal alleging discrimination in employment on ground of age, contrary to s. 13 of Human Rights Code (B.C.). Law firm's application to dismiss complaint denied. Tribunal found it had ju- risdiction over complaint on ba- sis that respondent employed by firm. Law firm's application for judicial review dismissed. Court of Appeal allowed law firm's ap- peal, finding that respondent, as partner, not in employment re- lationship. Respondent's appeal dismissed. As quasi-constitu- tional legislation, Code attracts generous interpretation to per- mit achievement of broad public purposes, including prevention of arbitrary disadvantage or ex- clusion based on enumerated grounds. Code achieves purpos- es by prohibiting discrimination in specific contexts such as "em- ployment", defined as includ- ing relationships of "master and servant", "master and apprentice" and "principal and agent" but not restricted to them. Expansive ap- proach should be given to "em- ployment" under Code. Test for determining whether someone is in employment relationship un- der Code is, in essence, control/ dependency test. Key is extent to which worker is subject and subordinate to someone else's decision-making over working conditions and remuneration. Partnership is, by its nature, en- trepreneurial relationship among individuals agreeing to do busi- ness together. Partners generally have right to participate mean- ingfully in decision-making pro- cess that determines workplace conditions and remuneration. Partnership agreements also typically create high threshold for expulsion. Where partners do leave partnership, they are entitled to be paid their share of partnership's capital account. Partners not normally employees of partnership. Respondent was in control of, rather than subject to, decisions about workplace conditions. As equity partner, he was part of group that controlled partnership. Under partnership agreement, most major deci- sions, including those relating to firm's mandatory retirement policy, were subject to vote of partnership. Respondent not de- pendent on firm in meaningful sense but rather was in common enterprise with partners for prof- it, working for his own benefit. In absence of any genuine control over J.M. in significant decisions affecting workplace, there was no employment relationship with partnership. McCormick v. Fasken Martineau Dumoulin LLP (May. 22, 2014, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Crom- well J., Moldaver J., and Karakat- sanis J., File No. 34997) Decision at 217 A.C.W.S. (3d) 666 was af- firmed. 240 A.C.W.S. (3d) 430. Railways RATES Agency not precluded from reviewing reasonableness of charge contained in tariff Peace River Coal (PRC) and Ca- nadian National Railway Com- pany (CNR) entered into con- fidential contract for shipping coal which specified that fuel surcharge in Tariff 7402 applied when monthly average price of highway diesel fuel equalled or exceeded "strike price". Soon af- ter parties entered into confiden- tial contract, CNR introduced Tariff 7403, which set higher strike price. However, Tariff 7402 remained applicable to confiden- tial contract and CNR refused to apply higher strike price to PRC's traffic. Canadian Trans- portation Agency dismissed PRC's application under s. 120.1 of Canada Transportation Act, for order varying strike price in Tariff 7402 to ref lect higher strike price in Tariff 7403. Pursu- ant to petition brought by Cana- dian Industrial Transportation Association under s. 40 of Act, Governor in Council rescinded agency's decision. On judicial review, Federal Court restored agency's decision. Federal Court of Appeal set aside Federal Court judgment and dismissed CNR's application for judicial review of Governor in Council's decision. CNR's appeal dismissed. Appli- cable standard of review of adju- dicative decisions of Governor in Council is reasonableness. Gov- ernor in Council has particular familiarity in area of economic regulation and transportation law and policy is closely related to Governor in Council's review function. Governor in Council's conclusion that party to con- fidential contract able to bring complaint under s. 120.1 of Act in certain circumstances sup- ported by facts and wording of s. 120.1(1) and reasonable. Act does not preclude agency from re- viewing reasonableness of charge contained in tariff applicable to more than one shipper, whether or not incorporated by reference into confidential contract. Gov- ernor in Council entitled to con- clude that Parliament's intent in enacting s. 120.1 was to provide measure of protection for ship- pers; leaving access to s. 120.1 complaint mechanism available to parties to confidential con- tracts can reasonably be said to be consistent with that intention. Canadian National Railway v. Canada (Attorney General) (May. 23, 2014, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Roth- stein J., Cromwell J., Karakatsanis J., and Wagner J., File No. 35145) Decision at 223 A.C.W.S. (3d) 247 was affirmed. 240 A.C.W.S. (3d) 262. FEDERAL COURT OF APPEAL Citizenship QUALIFICATIONS Grant of citizenship by descent limited to first generation born abroad to Canadian citizens Applicants' paternal grandmoth- er was Canadian citizen, but ceased to be Canadian citizen when she became naturalized citizen of United States. Appli- cants' father was born in United States and at time of his birth nei- ther of his parents were Canadian citizens. Applicants were born in United States and at time of their birth neither of their parents were Canadian citizens. Citizen- ship Act (Can.), was amended to extend citizenship to individuals who lost or were denied citizen- ship. Grandmother's Canadian citizenship was restored retro- actively to date she lost citizen- ship and father was deemed to be Canadian citizen from time he was born. Applicants applied for Canadian citizenship. Del- egate refused to issue citizenship certificates to applicants because they did not meet statutory re- quirements for citizenship in s. 3(1)(b) of Act. Delegate found that s. 3(3) of Act limited citizen- ship by descent to first genera- tion of progeny born abroad to Canadian citizens. Applicants' application for or judicial review of delegate's decision was dis- missed. Judge found that s. 3(3) (a) of Act was intended to cut-off citizenship by descent after first generation born abroad. Appli- cants also claimed that s. 3(3)(a) of Act violated s. 15 of Canadian Charter of Rights and Freedoms. Judge found that applicants did not have standing under Charter to challenge unconstitutionality of s. 3(3)(a). Applicants appealed. Appeal dismissed. Standard of review was correctness. Required textual, contextual and purpo- sive analysis was conducted and delegate's interpretation of Act was correct. Section 3(3)(a) of Act operated to limit grant of citizen- ship by descent to first genera- tion born outside of Canada to Canadian parent and that limita- tion applied to applicants. Kinsel v. Canada (Minister of Citizenship and Immigration) (May. 14, 2014, F.C.A., Eleanor R. Dawson J.A., Johanne Tru- del J.A., and D.G. Near J.A., File No. A-35-13) Decision at 224 A.C.W.S. (3d) 264 was affirmed. 240 A.C.W.S. (3d) 295. Human Rights Legislation DISCRIMINATION Employer ordered to pay $20,000 to employee for its reckless conduct Employee worked as conductor and her home terminal was Jas- per, Alberta. Employee was on laid off status, but was recalled to report to temporary work as- signment in Vancouver, British Columbia to cover employer's shortage of running trade em- ployees at Vancouver terminal. Employee asked for accommoda- tion with respect to her childcare needs, but employer refused to deal with her requests. Employer informed employee that her se- niority rights had been forfeited and her employment terminated because she failed to cover short- age in Vancouver. Employee filed human rights complaint alleging Lexpert DealsWire is a new way to keep abreast of the significant M&A deals that are making news right now. It will examine and analyze key developments and trends as they happen and will report on the key players as deals are announced and closed both in Canada and around the world. Sign up today for bi-weekly email alerts at www.CarswellMedia.com/newswire/Dealswire GET THE LATEST NEWS AND VIEWS ON M&A Untitled-1 1 2014-09-11 1:13 PM cASELAW CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164.