The Fact of the Matter Is...: McCormick v. Fasken Martineau DuMoulin LLP, 2014 SCC 39

A quick note on McCormick v. Fasken Martineau DuMoulin LLP, 2014 SCC 39, an interesting case about whether law firm partners can be required to retire at 65. Short answer: yes (in British Columbia).

The BC Human Rights Tribunal found that Mr. McCormick was an employee of the firm, a finding which would have entitled him to protection against discrimination on the basis of age. The Supreme Court of Canada quashed this decision, concluding (uh-oh...) that the Tribunal did not have "jurisdiction" to address Mr. McCormick's complaint (at para. 15).

Do not worry! Abella J. was using "jurisdiction" in a conclusory sense to indicate that, properly interpreted, the statute did not cover Mr. McCormick.

And the proper interpretation of this particular statute is a matter for the courts. BC has a statute, the Administrative Tribunals Act, that requires courts to apply a correctness standard to all questions "except those respecting the exercise of discretion, findings of fact and the application of the common law rules of natural justice and procedural fairness" (s. 59, in situations where there is no privative clause).

However, Abella J.'s decision was not purely an exercise in statutory interpretation. Consider the following paragraph:

[39]                          Turning to Mr. McCormick’s relationship with his partnership and applying the control/dependency test, based on his ownership, sharing of profits and losses, and the right to participate in management, I see him more as someone in control of, rather than subject to, decisions about workplace conditions.  As an equity partner, he was part of the group that controlled the partnership, not a person vulnerable to its control.

Whatever these considerations are, they are not questions of law. Arguably, they are "findings of fact". At the very least, they are questions of mixed fact and law.

The BC courts have reviewed questions of mixed fact and law under s. 59 on a correctness standard. I think this is wrong as a matter of principle. Common law principles apply to the Administrative Tribunals Act (see, by analogy, the treatment of the Federal Courts Act in Khosa), so s. 59 should be interpreted accordingly. These principles teach us that deference is appropriate on questions of mixed fact and law. Given that these are not clearly specified in s. 59, they should be subject to deferential review.

This is purely academic, however. The fact of the matter is that the Supreme Court has no appetite to undo a compromise that seems to suit BC's judges and politicians. It is understandable that pragmatism should triumph over principle!