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Page 6 May 4, 2015 • Law Times www.lawtimesnews.com COMMENT mandatory retirement issue resurfaces hen 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, main- tains 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 ad- mitted 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 up- held 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 agree- ment rather than after his retirement on Dec. 31, 2013. On April 27, the Liberals, Conservatives in tricky situations over budgets, leadership uring last year's election cam- paign, the former Ontario Progressive Conservative leader took a major hit over his promise to cut 100,000 jobs over the next two terms. So meet the next Tim Hudak. No, it's not MPP Christine Elliott or MP Patrick Brown, both of whom are vying for Hu- dak's job at the Progressive Conservative leadership event this Saturday. The new and improved Tim Hudak is none other than Ontario Liberal Premier Kathleen Wynne. If you thought former premier Mike Harris and company were arrogant in their last days in office, Wynne's next 36 months could change all of that. In tabling a $131.9-billion budget last month, the Liberals promised to rob Pe- ter to pay Paul by selling off 60 per cent of Hydro One and foregoing substantial dividends. Last year, for example, Hydro One paid out $287 million. Granted, it would take more than 20 years to realize the $9 billion from a selloff, but it seems a short-sighted remedy. Further, Finance Minister Charles Sousa assured us, the annual deficit will fall to $8.5 billion this fiscal year and then to $4.8 billion in 2016-17 before the gov- ernment eliminates it in 2017-18. Do the math: If we assume inf lation will be 1.5 per cent, Ontario's overall budget ex- penditure will increase to about $133.8 billion next year and then $135.8 billion in 2016-17. To meet their targets, the Liberals must cut a to- tal of $5.6 billion followed by another $6.8 billion or raise taxes accordingly. The vast majority of government spending, however, is for sala- ries paid to pay teachers, doc- tors, nurses, politicians, and mandarins. So there's potential for labour unrest as teachers belly up to the negotiating table only to hear there's no room for a wage increase. Soon, the unrest will spread to other sectors. Warren (Smokey) Thomas, president of the Ontario Public Service Employ- ees Union, saw this train wreck com- ing long ago. Last year, he said other big union players made a pact with the devil because they feared Hudak would follow through on his promise but pre- dicted Wynne herself would have little choice but to cut if she didn't raise taxes. Testifying at pre-budget consul- tations last January, Thomas again reiterated his call for higher taxes over job cuts. "Overall public spending at all levels of government provides roughly 20 per cent of jobs in the On- tario economy," he said. It's going to be a rough ride from here on in. Last year, Wynne successfully played the fear card against Hudak, backed by $8 million in third- party advertising from the big unions. Perhaps anticipating their profile won't be as positive with those sup- porters in 2018 and the advertising may instead support the NDP, last week the government announced it would tighten the rules around third-party spending. The shift brings us back to the Tories' leadership fight. Brown, 36, is a lawyer and MP for Barrie, Ont., who came out of the blue as the f lag bearer for a mostly socially regressive constituency opposed to same- sex marriage, sex education, and abortion. Elliott, a 60-year-old lawyer, is more progressive and the sentimental favourite given the tragic death of her husband, for- mer federal finance minister Jim Flaherty, last year. An MPP since 2006, she has held the position of deputy leader and ran against Hudak for the leadership in 2009. The party must choose wisely be- cause the new leader must pull voters from Wynne through a kinder and gen- tler approach built on a fiscally conser- vative but socially liberal platform. Re- verting to the union-busting party of the last century isn't going to work. The Conservatives held power for 42 years under premiers such as Bill Davis and while the Common Sense Revolution of Mike Harris did put them back in office, voters tired of austerity at the end. Three years from now, voters could revile Wynne as much as Harris and even Bob Rae at the end of their terms. Every good election needs a bogey- man. Hudak played the role last year while John Tory haplessly fell into it against Dal- ton McGuinty in 2007 by promising full funding for faith-based schools. There's a real opportunity for a Con- servative title shot in 2018 and it starts with whoever wins the leadership next weekend. LT uIan Harvey has been a journalist for more than 35 years writing about a di- verse range of issues including legal and political affairs. His e-mail address is ianharvey@rogers.com. ©2015 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. 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. 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"It would require applicants to complain of al- legedly 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 re- tirement is an important one that will affect a grow- ing 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 D Queen's Park Ian Harvey W

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