The Human Rights Tribunal of Ontario (“Tribunal”) recently decided in an interim decision, Swain v. MBM Intellectual Property Law LLP, 2015 HRTO 1011 (“Swain”), that a law firm equity partner is entitled to the protection of the Human Rights Code (“Code”). The partner alleged her removal from the firm was discriminatory and in breach of the Code because it was based, at least in part, on allegations that she had certain psychological illnesses that impacted her performance and her relationships at the law offices, and that she derived certain considerations because of her status as a former spouse of another partner of the firm.
Swain is noteworthy because the Supreme Court of Canada recent ruled in McCormick v. Faskens Martineau DuMoulin LLP, [2014] 2 S.C.R,.108 (“McCormick”) that an equity partner in a law firm in British Columbia was not entitled to the protections of the British Columbia Human Rights Code. That partner had alleged that she suffered discrimination based on the law firm’s mandatory retirement policy. The Court reached its decision based on its finding that the equity partner was not an employee. McCormick sets out criteria that will guide a determination of whether someone who is a partner in name can, in certain circumstances, be treated as an employee.
The Tribunal distinguished McCormick based on the broader protections offered by Ontario’s Code which provides “a right to contract on equal terms”, a protection not offered by British Columbia’s Code. In reaching its decision the Tribunal held that the Code’s protection is not limited to the time the contract is formed or terminated. The Code also protects the enjoyment of the benefits that flow from the specific performance of the contract.
The Tribunal refused the Repondents’ request that the Application be dismissed on a preliminary basis for non-engagement of a social area of the Code finding that the equity partner was entitled to the protections of the Code.