McCormick and Beyond, Surprising edicts from our top court

Consider, if you will, what it would feel like to stand in front of the Supreme Court of Canada and face questions like: 'if what you're saying is right, wouldn't that mean you could eliminate someone's job for being pregnant, or because of their religion?' I hope that you have concluded it would not feel very good to face such questions. In fact, it might even feel like yours is a losing case. And yet, one never knows what one's judge is thinking. Despite the implications contained in the question above, the Supreme Court of Canada recently ruled that an equity partner in a law firm is not covered by the B.C. Human Rights Code. To be clear, the Court only so ruled in relation to one partner (the Appellant Mr. McCormick). The judgment leaves the door open for human rights protection in very different circumstances. In Mr. McCormick's case, the protected right in question was age. But age is one of nine protected grounds, which are all equally important in the eyes of the law. The law reads (in part): Discrimination in employment 13 (1) A person must not (a) refuse to employ or refuse to continue to employ a person, or (b) discriminate against a person regarding employment or any term or condition of employment because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person. The essential test, ruled the Court, is whether the Complainant is in a position of control. As an equity partner, Mr. McCormick could vote on all aspects of the partnership agreement, including the one he challenged in this litigation. We will note, however, that Mr. McCormick was one of more than 250 partners. If his one vote amounts to "control" it is difficult to envision what circumstances would yield the conclusion that one lacks control. The decision does carve out an exception though. As noted above, different circumstances could yield a different result. Accordingly, we have yet another area of law involving a nebulous spectrum. An equity partner with no control would have Human Rights protection, whereas Mr. McCormick (and presumably anyone who has more control) has no protection. In the coming years, cases will hopefully define that spectrum more clearly. Until then my colleagues and I can only advise on a case by case basis, although certainly with reference to the McCormick decision.